Is this all far-fetched, doom-and-gloom, dystopian theorizing? Probably. I hope certainly. Nevertheless, it is a topic of conversation which keeps cropping up, so…
I know how Donald Trump is going to attempt to stay in office beyond the end of his term. It’s Section 3 of the 20th Amendment. Section 3 talks about who shall become President or act as President (two different things) if there is no President elect or if the President elect is not qualified to serve as President. The final clause of that Section reads “the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.” In other words, if the election is somehow prevented from occurring—and despite Article II, Section 1, and Amendment 20, Section 1—I think Donald Trump’s sycophants are relying on this phrase to enable the Congress to “select” him to “act” as President “until a President or Vice President shall have qualified” (by being elected).
This revelation came while I was researching the essay I thought I was going to write, noting that, regardless of what Trump and the Trumpians try to do to the election of 2028, a lack of an incoming President does not enable the current President to remain in office.
I was going to quote Article II, Section 1 of the Constitution, which says the President “shall hold his office during the Term of four Years”—thus limiting the time the President serves to four years, whether a successor has been elected or not.
I was going to go on to 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.” Thus preventing the President from becoming Vice President, only to succeed to the Presidency with the removal of the new President.
Then comes the first Section of the 20th Amendment: “The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.” Repeating and emphasizing the Article II quote above: the President’s term ends, regardless of whether or not there is a successor waiting.
And, of course, the first Section of the 22nd Amendment: “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”
But then I stumbled upon Section 3 of the 20th Amendment, as I said above. That’s the “well, there may be a way around the Constitution” that the most ardent Trumpians have been hinting at. It’s fairly simple, if we assume they can somehow prevent the next Presidential election. And one doesn’t have to be too creative to figure out ways to do that: declare a state of emergency, ban gatherings “for public safety” during the first week in November, so that an election cannot be held (that’s why they keep pushing to get rid of mail-in ballots and early voting; so that there will be no ballots to count). Or, perhaps easier, would be to look at the fifth paragraph of Article II, Section 1: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Such an emergency declaration could simply prevent the Electors from gathering to cast their votes in December. No electoral votes, therefore nothing to count on January 6, and no President elect. Blocking that, rather than the general election, would mean that there would still be a new Congress elected who would then be charged with selecting that person who shall act as President.
Therefore, Congress needs to adopt a new law, by a veto-proof margin, saying “No person who is ineligible to be elected President may act as President.”


