Can Trump run for a third term?

And more from the mailbag.

Good morning! It’s November 20, 2024. Inauguration Day is 61 days away.

Presidential transitions make for great civics lessons, and one of my main goals with Wake Up To Politics has always been to help peel back the curtain and explain how the U.S. government really works.

A lot of you have been writing in with questions over the last few days about different facets of the transition — so I wanted to run another mailbag column to give some answers. Keep the questions coming! If there are more things you’re curious about or want explained, feel free to let me know. You can reach me by replying to this email.

Let’s get into it!

A campaign button from FDR’s campaign for a third term in 1940.

Cabinet math

Derek F. asks: I would like you to address the question of whether the Republican Senate will balk at any of Trump’s nominees and, if so, what do you think would be their red line? My feeling is that the Senate Republicans, with the exception of Murkowski and Collins, have capitulated to Trump and will rubber stamp everything he asks for. Do you agree? Is there a “bridge too far?”

It’s safe to assume that most Trump Cabinet nominees will be easily confirmed. Personally, I think the most endangered pick is Attorney General nominee Matt Gaetz — not just because of the salacious details emerging from his House Ethics Committee investigation, but also because he has personally clashed with a not-insignificant amount of Senate Republicans.

In the end, it’s possible that the red line will be refusing to vote for someone they find personally obnoxious, but confirming everyone else.

As mentioned in the question, Sens. Susan Collins (R-ME) and Lisa Murkowski (R-AK) are the Senate’s two most moderate Republicans and the two Republicans most likely to defect on Trump nominees. But Republicans will control a 53-47 majority next year, which means four GOP senators would have to defect to reject any Trump nominees.

Other senators to watch include three Republican senators who, like Collins and Murkowski, didn’t endorse Trump in this year’s election: Sens. Bill Cassidy (R-LA) and Thom Tillis (R-NC), plus Sen.-elect John Curtis (R-UT). And then, there’s the ultimate wildcard: outgoing Senate Republican Leader Mitch McConnell (R-KY).

One thing these six senators mostly have in common is immunity to any potential blowback from Trump or his supporters:

• Collins and Tillis are both up for re-election in 2026 in blue or purple states; they are probably helped more by bucking Trump than by helping him.

• Murkowski won’t be on the ballot again until 2028, and has a history of overcoming right-wing challenges: she even won re-election in 2010 as a write-in candidate after losing a Republican primary! Especially if ranked-choice voting survives in Alaska — a referendum to repeal it is narrowly on track to fail — Murkowski likely won’t pay much of a price for her independent streak.

• Curtis was just elected, so he is safe until 2030. But, regardless, Utah’s large Mormon population has never been thrilled with Trump; he is inheriting the seat being vacated by Sen. Mitt Romney (R-UT), another critic of the president-elect’s.

• McConnell in his last term, and stepping down from leadership, so there’s little holding him back if he chooses to defy Trump. He also differs quite a bit from several of Trump’s nominees: he has personal beef with Gaetz; as a polio survivor, he’s been outspoken in support of vaccines, which could raise issues with RFK Jr.; and he’s said the mission of his final years in the Senate will be to root out isolationism from within his party, which would seem to rule out Gabbard. Trump has also given him no reason to cooperate: in addition to previously using racist rhetoric to attack McConnell’s wife, the president-elect has continued to mock McConnell as recently as earlier this month.

The only exception here is Cassidy, who is up for re-election in 2026 and could face a primary challenge from right-wing Rep. Clay Higgins (R-LA) or another Trump ally. Louisiana has also changed its election system in a way that could hurt Cassidy. The state has historically used “jungle primaries,” where all candidates run on one primary ballot, regardless of party affiliation. If one candidate earns more than 50% of the vote, they win the seat. If no one does, then the top two vote-getters — be they a Democrat and a Republican, two Democrats, or two Republicans — advance to a runoff.

Theoretically, this could have yielded a situation where Cassidy and Higgins (or another right-wing rival) were the two top vote-getters, and Democrats could have bailed out Cassidy in the runoff. (Or, because of the open nature of the election, some Democrats could have opted to vote for Cassidy in the first round as well.)

However, under a new Louisiana law ending the “jungle primary,” Cassidy will be running in a traditional GOP primary in 2026, where he’ll be competing only for Republican votes, without the possibility for Democrats to participate. (Cassidy did, however, successfully push for an amendment to the law that guarantees that independent voters will be able to participate in either party primary.) This will be Cassidy’s first time facing Republican voters since voting to convict Trump in his second impeachment trial so, needless to say, he could be endangered, especially if he starts opposing Trump nominees.

Term limits

Jolie F. asks: I wanted to confirm that Trump will in fact be term limited after he finishes his upcoming term as president and that there’s not a loophole about presidential terms being limited to two consecutive terms rather than two total.

Ed L. asks: I understand that the Constitution only allows for two terms. But let’s assume that Trump decides to ignore the Constitution. (Not a stretch to imagine.) The Constitution requires enforcement, so the question is more about who and when will this part of the Constitution be enforced.

The Republican Party could just say “no” and refuse to put him on the primary ballot. But he seems to own the party, so I am not sure what person or group within the party would be brave/foolish enough to say “no” to Trump.

If the Republicans put him on the primary ballot (which doesn’t seem to violate the Constitution) the states apparently can’t refuse to put him on the ballot, per the recent Supreme Court ruling on states’ authority to change ballots in federal elections.

So, he is now on the Republican primary ballot and the people can vote him out of a third term. Or he could win again.

Now he goes on the November ballot. The states still can’t kick him off. It is not clear that Congress could remove him from the ballot as that becomes a separation of powers issue. Plus, they may not want to, depending on the makeup of Congress at that point. They could impeach and convict him in his second term for (clearly) violating his constitutional oath of office, but that has failed twice before and may not work this time either.

So, might we get to election day, with Trump on the ballot?

A lot of you asked about whether the two-term limit applies to Trump — even though his two terms will be non-consecutive — so I thought I’d touch on it here. First off, yes, the 22nd Amendment prohibits anyone from being elected to the presidency more than twice. It makes no distinction between consecutive and non-consecutive terms, so Trump will be prohibited from running again in 2028.

Changing that would require support from two-thirds of both chambers of Congress and three-fourths of state legislatures, which is deeply unlikely to happen. (Unless, maybe, Democrats want to pave the way for an Obama/Trump face-off in ’28. Just kidding. Probably.)

Now, to address the hypothetical in the second question: I appreciate the thought put into it, but there’s one issue with the premise. Yes, earlier this year, the Supreme Court did block Colorado’s attempt to remove Trump from the ballot by invoking Section 3 of the 14th Amendment, which prohibits insurrectionists from holding federal office.

But the Supreme Court didn’t rule in Trump v. Anderson that states can’t remove candidates from federal ballots. They only ruled that states can’t remove candidates from federal ballots by invoking Section 3 of the 14th Amendment, the provision which was at issue in that case. It was not a blanket ruling applying to all questions of presidential eligibility; it merely applied to 14th Amendment challenges.

There is good reason to think that the Supreme Court would handle a challenge under the 22nd Amendment differently. If you read the court’s opinion in Trump v. Anderson, two key issues come up:

1. The court pointed to other provisions in the 14th Amendment that Congress was empowered to invoke, arguing that those provisions suggested that Section 3 was also under Congress’ jurisdiction as well. There are no such provisions in the 22nd Amendment empowering Congress over state officials.

2. The court noted that there is no one definition of insurrectionist — which could lead to a patchwork of some states allowing a certain candidates on the ballot and other states not. “State-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent,” the court wrote.

The court ruled, in part, that Congress needed to settle 14th Amendment questions because each state might decide those questions differently — but the question of whether the 22nd Amendment bars a candidate would not be unlikely to yield a “uniform answer.”

This was explicitly addressed in the Trump v. Anderson oral arguments, when Trump’s lawyer said: “Of course, a state can disqualify [a two-term president] from the ballot because that is a qualification that is categorical. It’s not defeasible by Congress. So a state is enforcing the Constitution when it says you can't appear on our ballot if you've already served two terms as president.”

The issue in Trump v. Anderson was that having “engaged in insurrection” is subjective. But having served two terms is not, as Trump’s own lawyer acknowledged. That means that there’s nothing in the SCOTUS ruling that would stop states from barring Trump from the ballot if he were to run again in 2028, just as they are allowed to bar candidates who fail on other objective grounds (such as whether they are 35 years old or a natural-born citizen).

Recess appointments

Mike N. asks: Assuming the Republican leadership goes along with Trump’s request and agrees to an actual recess, is there any way the Democrats can prevent it? I’m imagining a scenario in which the Democrats say, “You guys can go on recess, but some of us will stick around. We won’t do anything, just keep the pro forma session going.”

Not by themselves, no. If a majority of the Senate wants to recess, a minority of the chamber can’t keep them in session against their will. Motions to adjourn are not subject to the filibuster, so only 51 votes are required to go into recess — meaning Democrats would need Republican defections in order to prevent an adjournment. (The Republican senators to watch would be the same ones listed above. McConnell, for example, has already signaled his opposition to recess appointments.)

Mike N. asks: If the Senate votes and rejects a nominee for a given post, and if that post remains unfilled when Congress goes on recess, can the president go ahead and appoint this person to that post anyway?

Yes. There really are no restrictions on who a president can give a recess appointment to: they could be someone he has already nominated for the post who hasn’t been considered; someone who has been rejected; or even someone who hasn’t been nominated to the post at all. (According to the Congressional Research Service, six of George W. Bush’s recess appointees were never nominated to go through the Senate confirmation process.)

Importantly, per Article II, Section 2, Clause 3 of the Constitution, recess appointments last until the end of the “next session” of Congress — meaning, for example, a recess appointment made at the beginning of Trump’s term would last until January 2027.

Let’s say Trump nominates someone when he takes office, the Senate recesses before they’re confirmed, Trump names them as a recess appointee, and then the Senate returns and rejects them. That person still gets to continue serving in their recess appointment until January 2027! The end of the “next session” means the end of the “next session.” The recess appointee being rejected by the Senate during their recess appointment doesn’t change how long the appointment lasts.

One more factor to consider, though: a 2007 statute appears to prevent recess appointees from being paid if the Senate has rejected them for the post (either before or during their recess appointment), although this provision has never been tested.

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More news to know

Commerce Secretary nominee Howard Lutnick (left) with Vice President-elect JD Vance. (Photo by Cantor Fitzgerald)

President-elect Trump announced Cabinet posts for both of his transition co-chairs yesterday, picking Howard Lutnick for Commerce Secretary and Linda McMahon for Education Secretary. Lutnick, the CEO of the Wall Street firm Cantor Fitzgerald, is an outspoken advocate for Trump’s tariff agenda; McMahon, along with her husband Vince, co-founded professional wrestling giant WWE and led the Small Business Administration in Trump’s first term.

Oh, and Trump’s nominating Dr. Oz to oversee Medicare and Medicaid.

An unidentified hacker has gained access to a computer file said to contain a woman’s sworn testimony that she had sex with Attorney General nominee Matt Gaetz when she was 17 and he was 35.

House Speaker Mike Johnson has reportedly promised Rep. Nancy Mace (R-SC) that her proposal to prohibit transgender women from using women’s restrooms in the Capitol will be included in the next House rules package. The first-ever transgender member of Congress, Rep.-elect Sarah McBride (D-DE), is set to take office in January.

Health and Human Services Secretary nominee Robert F. Kennedy Jr. said in 2020 that he was sympathetic to conspiracy theories that the U.S. government planned the Covid-19 pandemic. “A lot of it feels very planned to me,” Kennedy said in a newly surfaced video.

Manhattan prosecutors are opposing Trump’s bid to dismiss his hush money conviction, instead urging the judge to postpone his sentencing until after his presidential term is over.

The U.S. is referring to opposition party candidate Edmundo González Urrutia as Venezuela’s president-elect, even as incumbent leader Nicolás Maduro continues to insist he won yet another contested election.

The next vice president of the United States just referred to someone as a “mouth breathing imbecile.”

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The day ahead

The House Ethics Committee could vote today on releasing its report on former Rep. Matt Gaetz. (Photo by Gage Skidmore)

• President Biden has nothing on his schedule.

• Vice President Harris is on vacation in Hawaii.

• President-elect Trump is expected to continue meeting with Treasury Secretary candidates.

• The Senate is set to hold a series of votes, forced by Sen. Bernie Sanders (I-VT), on resolutions blocking arms sales to Israel. The chamber will also continue holding confirmation votes on Biden judges and hold a vote, forced by Sen. Rand Paul (R-KY), on Ukraine loan forgiveness.

• The House will hold votes on several pieces of foreign policy legislation.

• The House Ethics Committee is set to meet and potentially vote on whether to release its report into Attorney General nominee Matt Gaetz. The Ethics panel is the only committee in the House evenly split along party lines: five Democrats, five Republicans.