Tony Benn's lesson for Donald Trump

The President can't run for a third term. Or can he?

In less than four years Donald Trump will be gone. No president may serve more than two terms. On January 20, 2029, his successor will be sworn in. In these dark days, that’s a crumb of comfort.

Well, maybe. The two-term limit is enshrined in the 22^nd amendment to the US constitution. It was passed in 1951 and decrees that “No person shall be elected to the office of the President more than twice”. That seems pretty conclusive. However, one of the odder episodes from Britain’s democratic journey suggests that things might not be so clear cut.

Viscount Stansgate died on November 17, 1960. His place in the House of Lords passed to his eldest son, Anthony Wedgwood Benn (as Tony Benn was then known). The process was automatic and immediate. Benn had been an MP for ten years. The moment his father died, that stage in his career was over, as it was impossible to anyone to sit in both the House of Commons and the House of Lords.

This meant that a by-election had to be held to choose a new MP for Bristol South East. Benn had known this day would come. He had long wanted the right to renounce his right to a peerage, but had failed to change the law. However, there was a kink in the law: it stopped Benn being an MP, but did not stop him standing for election. He was duly nominated as Labour’s candidate, even though he would be unable to take his seat if he won.

His victory was emphatic. His majority more than doubled to 13,044. His Conservative opponent, Malcolm St Clair, took the seat but, to his credit, said he would stand down if the law was changed to allow Benn to give up his peerage. This episode did indeed lead to a change in the law. St Clair duly stood down, a new by-election was held, the Conservatives did not field an official candidate, Benn won even more emphatically, and in August 1963 resumed his career as an MP.

Back to Trump. The 22^nd Amendment seems to be like the law that Benn faced in 1961: It stops the president serving in 2029, but does not necessarily stop him running in 2028. Suppose he tries to do just that, What then?

Here is where Britain and the US diverge. Our unwritten constitution is flexible. When our democratic rules run into trouble, we have a political system that can act fairly quickly. The Peerage Act received the Royal Assent in July 1963, just two years after Benn’s first by-election.

America’s system is more rigid. In the short term, a constitutional headache cannot be cured by politicians changing the rules. It must go to the Supreme Court. If Trump did want to run next time, what would the justices decide?

Plainly, the 22^nd amendment says that Trump could not serve. But Trump’s lawyers might argue that this is different from banning him from being a candidate. In the absence of an explicit prohibition, he should be allowed to go ahead. Given the make-up of today’s Supreme Court, there must be a real chance that it would side with Trump and let him run.

Now, suppose he runs, and wins. Surely the 22^nd amendment would prevent him being inaugurated for a third time?

Article II, Section 1 of the Constitution sets out the process for choosing the president. Formally, the choice is made by the “Electors” – the electoral college – people from each state “equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress”. It goes on to say that “the person having the greatest number of votes shall be the president, if such a number be a majority of the whole number of electors appointed”.

If he secured that majority, Trump could point to the conflict between the original constitution, under which he should be able to remain president, and the 22^nd amendment which says he must stand down when his current term is up. To put it another way (as Trump’s lawyers might), the Court has to choose between the democratic and the anti-democratic option.

Once again, the Supreme Court would have to decide. Can any of us be sure which way it would go?

If the clock could be turned back to 1951, the 22^nd amendment could be rewritten to bar presidents from running for a third term, not just serving a third term. Presumably, nobody back then expected this to be put to the test. They did not allow for Donald Trump.

Of course, it may never happen. At the next presidential election, Trump will be 82. He might not want a third term. He might not be popular enough to win. (As I argued last week, he’s not that popular now.) But the story of American politics over the past decade has been of Trump’s critics repeatedly underestimating his intentions and his ability to get his way.

In short, a pro-Trump Supreme Court might make the 22^nd amendment a dead duck. But if it does, then various possibilities open up. If Trump is allowed to stand, this might affect what the Democrats do. Here’s a thought. Could the person taking the oath on January 20, 2029, be… Barack Obama?