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Constitutional Law

Can Trump serve third term? Yale Law prof sees ‘possible loophole’ to 22nd Amendment ban

By Debra Cassens Weiss

April 3, 2025, 3:01 pm CDT

Can President Donald Trump serve a third term? The 22nd Amendment appears to prevent it. “No person shall be elected to the office of the president more than twice,” it reads. But could a president serve a third term if he isn’t “elected” to the office?

The use of the word “elected,” rather than “serve,” is “an unfortunate drafting error,” in the view of Michael C. Dorf, a professor at Cornell Law School, who spoke with the Washington Post.

The Wall Street Journal (gift link via How Appealing), the Washington Post and the New York Times have coverage of the constitutional questions.

The issue is getting attention since Trump told NBC News that “there are methods” by which he could serve a third term, and he wasn’t joking.

NBC News asked Trump about a scenario in which Vice President JD Vance would run for president and then hand the office of president to Trump.

“That’s one” method, Trump responded.

But Trump could not be Vance’s vice president, according to many experts who spoke with the Wall Street Journal and the New York Times. That’s because of the 12th Amendment, which says, “No person constitutionally ineligible to the office of president shall be eligible to that of vice president of the United States.”

Because Trump wouldn’t be eligible to be president, he wouldn’t be eligible to be vice president under the 12th Amendment, said Akhil Reed Amar, a constitutional law professor at Yale Law School.

Taking a contrary view are the authors of an article in the Minnesota Law Review written when former President Bill Clinton was president. The article argues that the 12th Amendment might not bar a two-term president from the vice presidency because “it is by no means clear that the term ‘eligibility’ as used in the 12th Amendment refers to or incorporates a person’s reeligibility under the 22nd Amendment” that followed.

The 12th Amendment eligibility provision was likely referring to constitutional requirements for the presidency based on citizenship, residency and age, according to the article co-authored by Bruce G. Peabody, a government and politics professor at Fairleigh Dickinson University. The ambiguities might allow a vice presidential run by a two-term president, he told the Wall Street Journal.

There is another possible scenario. What if Vance is elected president, he appoints Trump as the secretary of state, Vance and his vice president resign, and others in the line of succession before the secretary of state step aside?

That could work if Congress changes the federal presidential succession law to eliminate the ban on cabinet officials becoming president if they are ineligible for the job, according to Amar.

“There is a possible loophole. I wish it weren’t true, but there is,” Amar told the Wall Street Journal.

But some experts said there should be no debate on the issue.

The history of the 22nd Amendment’s drafting and ratification “make clear beyond doubt it was written that way to guard against the danger that anyone could use the office to assert long-term tyrannical control in the United States,” said Deborah Pearlstein, a professor at Princeton University, in an email to the Washington Post.

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3. Does judge’s reference to ‘little Chinese…

Judiciary

Does judge’s reference to ‘little Chinese woman’ show bias? Appellate concurrence sees ‘pure stereotyping’

By Debra Cassens Weiss

December 19, 2024, 1:42 pm CST

A California judge who said he was almost amused when a “little Chinese woman” stared him down did not rule against her based on ethnic bias, but his comment was “pure stereotyping,” according to two concurring judges in an appellate opinion.

The California Courts of Appeal’s Second Appellate District certified the Nov. 27 opinion for publication Dec. 17 after receiving requests that it do so from the California Civility Task Force and the Orange County Asian American Bar Association, Law360 reports. Published opinions can be cited as precedent.

The case involved a dispute between the plaintiff, Natalie Lloyd Merrick, and her mother over funds from the sale of a condo in China. Merrick was awarded more than $242,000 from the sale, leading to a dispute over the amount of prejudgment interest.

Judge Randolph M. Hammock of Los Angeles County, California, ruled against Merrick on the interest issue in June 2022 and awarded mandatory attorney fees of about $2,000 to the mother.

During the final hearing, Hammock made these comments: “I already rejected those arguments. OK. I know your client was not happy with my ruling [at a previous hearing]. I mean, she was there, you know, mad dogging me, which didn’t bother me at all. It was almost amusing to see this little Chinese woman stare me down because she didn’t like the ruling. But again, it’s just business. I didn’t take it personally.”

The appeals court opinion by Judge Elizabeth A. Grimes said there is no reason to believe that Hammock harbored any bias against Merrick. She added, however, that “unnecessary references to a litigant’s ethnicity and gender are certainly to be avoided.”

In a concurring opinion, Judge Maria E. Stratton agreed that Hammock’s “gratuitous comments” did not influence his ruling. His findings were supported by evidence, and his decision was based on a realistic evaluation of facts. But his comments “cannot pass without censure,” she said in the concurrence joined by Judge Victor Viramontes.

Stratton asserted that Hammock’s “patronizing description” of Merrick violated judicial canons requiring judges to be dignified and courteous, to act in a manner that promotes confidence in the judiciary, and to refrain from conduct that would reasonably be perceived as biased.

“Beyond being generally demeaning,” Stratton wrote, “the trial judge’s fatuous comment traded on racist and sexist tropes.” Hammock found it almost amusing that Merrick, “a little Chinese woman,” stared him down, she wrote.

“Implicit in the court’s identification of these characteristics as what made Merrick’s conduct funny was the concept that her behavior was incongruous; that is, someone like Merrick was neither expected nor supposed to act in a certain manner. This is pure stereotyping. How should a ‘little Chinese woman’ have acted? Like the stereotype of an Asian woman—demure, meek, eager to please, deferential to men?”

Stratton acknowledged that Hammock’s comment may have been “unwitting” and said such remarks implicate implicit bias, which can influence behaviors without awareness.

Stratton added that “being mindful of the stereotypes we all carry” is part of a judge’s job.

“Reining in impulses, our inner autopilot, to make random comments that personally denigrate a litigant is also part of our job,” she wrote.

Hammock told the ABA Journal that he couldn’t comment because there is no final judgment yet.

Hammock apologized for his conduct to his presiding judge after the appellate opinion was issued.

“Suffice it to state, I am extremely embarrassed and regretful of those comments,” he said in a letter self-reporting his conduct to the judge.

Hammock’s letter said he accepts that his comments violated judicial canons.

“I have certainly thought long and hard as to my actions in this regard, and moreover, I have considered what I need to do myself in order to take the appropriate ‘corrective actions’ needed to ensure that such violations do not occur again by me,” Hammock wrote.

The first step, Hammock wrote, was to self-report. He has also read publications on implicit bias mentioned in the concurrence and plans to take the next judicial course offered on the subject.

“You can rest assured that I will strive to do my best to learn a serious lesson from this incident and to act accordingly,” Hammock wrote. “I must and will do better.”

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3. ABA changes description of Judicial Clerkship…

Bar Associations

ABA changes description of Judicial Clerkship Program after conservative group sees ‘quotas’

By Debra Cassens Weiss

October 9, 2024, 2:00 pm CDT

The ABA updated the description of its Judicial Clerkship Program after a conservative group alleged that the language indicated that the association used racial “quotas” in violation of Title VI of the Civil Rights Act of 1964.

Annaliese Fleming, the ABA senior associate executive director and general counsel, said in a statement the description was changed because it was inaccurate.

“In reviewing the program materials, some language was removed that did not accurately reflect the operation of the program,” Fleming said. “The Judicial Clerkship Program has not been changed. We remain committed to the ABA’s Goal III of enhancing diversity and eliminating bias in the legal profession, legal system and the association.”

The prior description said law schools participating in the Judicial Clerkship Program must “commit to send (and underwrite the costs for) four to six law students who are from underrepresented communities of color.” The old description also said judges participating in the program would be asked to make a commitment to hire at least two minority law clerks over the next five years.

The new wording says law schools “are encouraged to select a diverse group of students using criteria aligned with the ABA’s Goal III objectives.” It also says judges from across the country participate in the program but says nothing about judges striving to hire at least two minority law clerks.

Reuters and Bloomberg Law covered the new language.

The conservative Wisconsin Institute for Law & Liberty had targeted the ABA’s description of the Judicial Clerkship Program in a civil rights complaint filed with the U.S. Department of Justice in May.

The complaint, which was also sent to the Department of Education, targeted law schools participating in the program, as well.

The complaint alleged violation of Title VI, which bans discrimination on the basis of race, color or national origin by recipients of federal funds. The complaint says the ABA is subject to Title VI because it receives federal funds, serves a public purpose, and provides educational and social services.

The complaint asked for an investigation of the ABA and any university that participated in the Judicial Clerkship Program.

The ABA had told the institute in response to an April demand letter that it “imposes no restrictions on which students can attend the program,” and that “the selection of student participants is left solely to the discretion of participating schools,” according to the Title VI complaint. The ABA response also said judges were not asked to make hiring commitments.

“The programs at issue are lawful, and we intend to defend them vigorously against any challenges,” Fleming said in a statement when the institute filed the DOJ complaint.

Skylar Croy, associate counsel at the Wisconsin Institute for Law & Liberty, did not immediately respond to an ABA Journal email with questions about the change.