The pundits are having a difficult time understanding how President Trump would fulfill his expressed desire to serve a third term as president. Some of them have fallen back on the possibility that he is joking and just trolling his critics. Others have come up with unlikely scenarios for achieving a third term. For example, one commentator asked Trump whether he planned to have J.D. Vance run as president, with Trump as his vice-presidential running mate. Under this scenario, Vance would resign immediately after the election, thereby elevating Trump to the presidency.
However, there are two problems with that scenario:
One, Trump couldn’t trust Vance to fulfill his part of the bargain. What if Vance changed his mind and decided to remain as president? That would leave Trump as vice-president for the next four years. He wouldn’t be very happy as vice-president. That’s the position that Vice President Garner said “is not worth a bucket of warm spit.”
Two, the 12th Amendment to the U.S. Constitution prohibits someone from being a vice-presidential candidate if he is ineligible to serve as president. The 22nd Amendment, which prohibits someone from being elected president more than twice, renders Trump ineligible to run as president.
Trumpsters have raised the possibility of a constitutional amendment that would enable Trump to seek a third term. The problem there is that such an amendment would have to be passed by a two-thirds vote in both houses of Congress and then ratified by three-fourths of the states. That simply is not going to happen and certainly not within the next three years.
So, does all this mean that Trump is simply joshing about a third term as president in an effort to provoke and upset his detractors?
Not necessarily. There is another path to a third term for Trump, a very viable path, one that he might well be pondering.
Ever since the Constitution called the federal government into existence, there has been a big potential flaw in the system. Under our system of government, the judicial branch of the federal government is the final arbiter of what is legal and constitutional. The potential flaw has always been the assumption that the president would defer to the judicial branch and would comply with adverse rulings of the judicial branch.
This mindset of executive deference to judicial authority even extended to President Franklin Roosevelt, who was president during the “national emergency” of the Great Depression. Even though FDR was furious over Supreme Court rulings declaring his socialist and fascist economic programs unconstitutional, and even though he proposed an infamous “court-packing” scheme to circumvent those rulings, he nonetheless complied with judicial rulings.
But what if a president decided to no longer comply with judicial rulings? In that case, as a practical matter, there is absolutely nothing the judicial branch could do about it, especially given the fact that America now has a national-security state form of governmental structure rather than the limited-government structure on which the nation was founded.
Let’s assume that the judicial branch issues an injunction against the executive branch that the president and his subordinates simply ignore. The court sends a team of U.S. Marshals with a contempt order to serve on one of the president’s subordinates. What happens when that team of U.S. Marshals encounters an infantry battallion of the 82nd Airborne Division, as well as a team of well-placed CIA assassins, that prevents that order from being served and enforced? We all know what happens. The judicial branch is rendered impotent. That team of U.S. Marshals returns to the court with its contempt order in hand.
That’s where the national-security establishment — i.e., the military, the CIA, and the NSA — comes into play. It becomes the means by which the president is able to ignore both the judicial branch and the legislative branch. Thus, the wild card in all this is the vast, omnipotent military-intelligence establishment, whose powers over American “terrorists” include military arrest, torture, indefinite detention, military tribunals, renditions to El Salvador, and even state-sponsored assassinations.
That’s precisely why our Founding Fathers hated big standing armies. They knew that big standing armies enable a ruler to exercise omnipotent, dictatorial, unchecked powers over the citizenry. That’s because it is extremely difficult to oppose the overwhelming power of a big, powerful standing army, especially one that loyally serves its commander-in-chief. As James Madison put it so eloquently, “A standing military force, with an overgrown Executive will not long be safe companions to liberty. The means of defence agst. foreign danger, have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war, whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved the people.” (See my 2013 article “The Dangers of a Standing Army.”)
Thus, let’s assume that for whatever reason — a war with Iran or China in 2027 — or an enormous economic crisis — or both — Trump declares a “national emergency,” much like the “national emergencies” he has already been declaring. Let’s assume that he issues an executive order stating that “national security” dictates that the presidential election will have to be suspended temporarily and that he is willing to remain as president in service to the country.
People file lawsuits and secure injunctions that nullify Trump’s executive decree. He could simply ignore them. What then? How would the judiciary enforce those injunctions and rulings, especially if Trump has succeeded in consolidating his power over the military, the CIA, and the NSA?
Let’s say that Congress votes to impeach Trump and convicts him. So what? On grounds of “national security,” he could ignore that process just as much as he could ignore rulings of the federal courts. How would Congress enforce its impeachment ruling against a president that is backed by the Pentagon, the vast military establishment, the CIA, and the NSA?
Soon after the January 6 protests at the Capitol in the 2020 elections, the Pentagon issued a remarkable statement declaring Joe Biden to be the president. (See my 2021 article “The Pentagon Speaks.”) In my opinion, that was the day that Trump realized that he was no longer going to be president. It might also have been the day when Trump realized how important it is for a ruler to have the deep, unwavering loyalty of a national-security establishment.
Can Trump replace enough generals with generals that are 100 percent loyal to him by 2027? Will he push the boundaries of violating court orders to see what he can get away with? Will he use executive orders to intimidate scared lawyers into silence and even support? Will he and his minions in Congress threaten recalcitrant judges with impeachment in an effort to cow them into submission?
Time will tell. But if Trump, backed by his national-security establishment, comes to the realization that nothing can or will happen to him if he crosses the line and begins openly ignoring and violating adverse rulings of the judicial branch, the road to serving a third term and beyond will be fully open to him.
Reprinted with permission from Future of Freedom Foundation.
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