Constitutional limitations are for chumps, not Trumps. The President has said that “people” are looking into ways he might serve a third term, but won’t say much else. A surprise attack is much more likely to be effective, after all. So let’s put it out in the public, so the American people can be prepared. The actual plan to be implemented will likely be some combination of tools and tactics here, and others not yet formulated. But right now it’s important the public knows the basics.
Nobody can stop a candidate from running
As the Supreme Court’s Trump v. Anderson decision made clear, states don’t have the ability to deny someone ballot access based on the candidate’s constitutional eligibility. Of course, that principle was never truly in question, as anyone who had ever read U.S. Term Limits, Inc. v. Thornton 514 U.S. 779 (1995) would have know. The only possible power to judge a person’s qualifications to serve as President can only originate from the federal constitution, just like the only power to create or remove qualification criteria.
Donald Trump can get himself onto the 2028 ballots, if that is what he wants.
Regardless of being ineligible, there is a good chance he’ll just run anyway. And while he’s campaigning, he’ll point out all the support he’s receiving from the MAGA voters, and use that to intimidate Republican elected officials to continue supporting him. He’s already been laying the groundwork each time he says “a lot of people want me to run.”
Only Congress can judge qualifications
No constitutional authority is explicitly granted to anybody at all to judge a would-be President’s constitutional merits. This leaves the electoral vote counting joint session of Congress the only mechanism definitively available to challenge or certify a person’s constitutional eligibility to serve as President. Similarly, the exclusive authority of Congress to challenge or certify a person’s eligibility can be said to transfer to other situations where Congress is involved in selecting the President, or confirming an appointed Vice President.
The double resignation backdoor maneuver
Whether President Trump is willing to instill the kind of trust it other people it would take for this to work, is an altogether different question. But in the absence of other well developed plans, this would seem the most directly feasible, even if complicated, if the broader political criteria can be achieved.
The tactic would require putting forward an entirely separate ticket of place holding lackeys (imagine a DJT Jr/Miller ticket) who would be willing to promptly resign upon taking office. The first resignation would be the new Vice President, obliging the new President to fill the vacancy—nominating none other than Donald Trump. Once confirmed by the Congress, the newly elected President resigns, elevating the newly appointed Vice President.
The “elected” loophole of the 22nd Amendment
Under the 22nd amendment nobody can be elected to three terms as president. But if “elected” only means chosen by the electoral college, then a person could still become President if selected by 12th amendment contingencies. To support this argument, the Article II Section 1 eligibility language can be cited, which clearly states that “no person shall be eligible…” when demanding natural born citizens for the office, along with similar language for the age requirement. The 22nd amendment would be argued as a criterion for election under normal means, but not a qualification to actually serve.
The tandemocracy
A figurehead candidate runs on the promise of allowing Donald Trump to be the actual de facto President. After election he/she promptly cedes all authority to Donald Trump, possibly as Chief of Staff or using a resignation backdoor to make him Vice President. The figurehead operates subservient to him while Trump controls the autopen.
Jurisdiction stripping
Whether the Supreme Court would tolerate judicial review of a person’s qualifications to be President is uncertain. If the Justices are inclined to accept that only Congress can certify or reject a person’s constitutional eligibility, then they might not entertain judicial intervention at all. The biggest challenge is that by the time this question is answered, it might be in conjunction with an unfavorable eligibility ruling.
The degree to which the Supreme Court may entertain full scale jurisdiction stripping on the question can be partially tested sooner. The constitution explicitly grants Congress the ability to put limitations on court jurisdictions. This power has historically been used with narrow confines of great specificity. As recently as 2018, in Patchak v. Zinke, both Roberts and Gorsuch were unwelcoming to the prospect of Congress precluding judicial power overall on an particular subject.
If current chatter about jurisdiction stripping over immigration cases and nationwide injunctions produces legislation, they will offer test cases to gauge the current mood of the Justices. This will ultimately provide insight that will help to shape any plans to rely on this tactic for election purposes.