This Essay argues that the Twenty-Second Amendment is enforceable by the states against any two-term president—including Donald Trump—who attempts to evade its requirements and seek an extraconstitutional third term. Whether Trump actually seeks such a term is an open question, though he professes to be serious about doing so, and allegedly sees multiple methods for appearing on the ballot. The narrow argument that the Twenty-Second Amendment technically allows a third presidential term under some circumstances—for example, by allowing a president to run for vice president—has not been tested, but it may soon be.
If such a theory is tested, it is a reasonable fear that the U.S. Supreme Court’s decision in Trump v. Anderson may preclude state enforcement of the Twenty-Second Amendment. I argue that Anderson, which solely concerned the enforceability of Section 3 of the Fourteenth Amendment, has no purchase in this context. The context, text, and procedural demands of the Fourteenth Amendment differ in every way from the Twenty-Second Amendment. As such, states are not only free to enforce the Twenty-Second Amendment against two-term presidents, but they should do so—because there are no other viable entry points for enforcement.
