No third term for Trump upon nonconsecutive-term theory, Vyas concludes in 22nd Amendment research

Trump at CPAC 2019
Mike Licht via Flickr CC BY 2.0

The theory that the President may seek a third term because his two terms were nonconsecutive holds no water.

That's the finding of law professor and constitutional scholar, and my friend and colleague, Anoo Vyas, in a short but important new piece in Wisconsin Law Review Forward: No Third Term: Rejecting the Nonconsecutive Loophole (2026).

Speaking about Trump at the Conservative Political Action Conference in March, televangelist Franklin Graham urged the crowd "to get him reelected!"

Graham subsequently said he misspoke (Yahoo News). His cry nevertheless stoked anxiety among Trump skeptics and opponents, amplified by the March 28 No Kings rallies, about the President's sometimes clingy affection for the office. 

Commenters have spilt much ink on how the President might circumvent the two-term limit of the 22nd Amendment.

With sound interpretive methodology and inquiry into historical sources, Professor Vyas's research takes the wind out of one circumvention theory. Here is the abstract:

The text of the Twenty-Second Amendment seems clear that a president cannot be elected to a third term: "No person shall be elected to the office of the President more than twice." This Essay looks further to the history surrounding the Twenty-Second Amendment, an exercise sometimes employed by judges, particularly those who favor the constitutional interpretive method of originalism. History shows that a president cannot be elected to a third term on the theory that the previous terms were nonconsecutive.

I'm a fan of Professor Vyas's work, such as his 2025 Why Capping the House at 435 is Unconstitutional (at The Savory Tort), besides his expertise in intellectual property law. So I have full confidence in his conclusion here and am gratified that he has shared it.

House cap of 435 is unconstitutional, prof argues

My colleague Professor Anoo Vyas has published Why Capping the House at 435 is Unconstitutional in the Penn State Law Review.

Here is the abstract.

Expanding the House of Representatives could offer several benefits, as noted by various public policy experts. It could make gerrymandering more difficult and mitigate the impact of money in our political system. Additionally, it could lessen political polarization, which some scholars argue has reached levels that threaten the long-term viability of our democracy. In fact, increasing the size of the House theoretically could impact all potential legislation at the federal level.

Congress fixed the House at 435 members nearly a century ago when it passed the Permanent Apportionment Act of 1929. Though the population of the country subsequently has increased by more than 200 million, the number of House delegates remains at 435. This Article argues that the Permanent Apportionment Act is unconstitutional because it eliminates Congress’ responsibility to assess the size of the House every ten years. This review of House size in connection with the census was a significant tool used by proponents of the Constitution during the ratification period to convince skeptics who feared the House may one day transform into an oligarchical body.

Prof. Anoo Vyas
UMass Law

The Permanent Apportionment Act violates various modes of originalism and textualism, as favored by more conservative jurists. Moreover, it runs afoul of living constitutionalism, espoused by more liberal judges. Finally, a formula, such as one that automatically adjusts House size to the cube root of the population, could avoid contentious fights while simultaneously passing constitutional muster.

As I discussed with Professor Vyas in the development of his work, I believe his thesis is important regardless of whether it precipitates an accordant Supreme Court ruling anytime soon. The impact the article can and should have is to spark serious consideration of the dysfunction of our Congress and why it has failed as an institution to meet the needs of voters. Look no farther than U.S. Rep. Mike Flood's (R-Neb.) disastrous town hall.

In fact, when Professor Alasdair Roberts lectured at the law school last week about deficiencies in the design of American government—I wrote about Roberts's lecture yesterday—Roberts specifically listed the small size of Congress, relative to the legislatures of the world's comparably large and complex polities, as a cause of our defective democracy.