The one thing that conservatives are excellent at is grabbing hold of the Overton Window and yanking it so hard to the right that we end up in the ditch.
But it’s not just right-wing politicians and activists who find ways to get their most unhinged and unacceptable ideas to the mainstream—some conservative attorneys and legal scholars are in on it, too, creating legal justifications for all of President Donald Trump’s blatantly unconstitutional moves.
The current project is to scrape up some historical and legal support for Trump’s increasing musings about serving a third term despite the 22nd Amendment clearly forbidding it.
But this is exactly what happened when Trump wanted to ignore the 14th Amendment and eliminate birthright citizenship, and when he wanted to ignore the Electoral College and stay in power after losing the 2020 presidential election.
Since the effort to deform the 22nd Amendment to create a loophole for Trump to slide through in 2028 is relatively new, it doesn’t have as much fake support yet. Mostly, conservatives are stuck with a single Minnesota Law Review article by Professor Bruce Peabody, originally from 1999 and updated in 2016, that examines how a president could circumvent the 22nd Amendment’s bar on a third term.
To be scrupulously fair, this particular article predates Trump’s ambition to occupy the White House until death do us part, and it’s far more of a thought experiment than a political polemic. But it’s precisely those types of thought experiments that get laundered into conservative discourse as articles of faith.
It’s Peabody’s article, really, that launched the possibility for Trump to slide into a third term, thanks to a tortured and hyper-literal reading of the 22nd Amendment.
The language of the 22nd Amendment forbids anyone from being “elected to the office of the president more than twice.” It does not, however, say that someone could not serve in the office more than twice, leading to complicated possibilities for Trump to remain in the White House.
But this is nonsense. The 22nd Amendment was literally pushed by Republicans in the wake of Franklin Delano Roosevelt’s three full terms and part of a fourth. There’s no credible way to say that what was really intended by the 22nd Amendment was to generally bar more than two terms—unless someone really, really wants a third term.
But now conservatives have Peabody’s hypothetical explanation of how to slither through loopholes in the Constitution to help them make their case.
This is also playing out right now with birthright citizenship. As recently as a couple of decades ago, the idea that the 14th Amendment excludes children from citizenship if their parents were not permanent U.S. residents or were undocumented immigrants at the time of their birth would have been met with laughter.
In fact, one of the only people who was pushing the idea was fringe lawyer extraordinaire and election denier John Eastman, who, in 2008, wrote a breathtakingly racist law review article arguing that the United States should rethink birthright citizenship because of 9/11.
While Eastman was somewhat alone on this issue for a while, once it became a fixation for Trump, it couldn’t just rest on Eastman’s shoulders, especially since he is now facing both state and federal criminal charges for his role in trying to overturn the 2020 election.
Fortunately for Trump, there are other soulless ghouls with better credentials who were happy to step up. Kurt Lash, a professor at the University of Richmond School of Law, rushed out an incomplete 8-page draft in late February, and he fleshed that out to a tedious 92 pages late last month.
University of Minnesota Law School Professor Ilan Wurman and Georgetown University Professor Randy Barnett took a different route, penning an on-ed for The New York Times to help launder these hard-right ideas into the mainstream.
But both of their arguments boil down to the same thing: The phrase “subject to the jurisdiction thereof” in the 14th Amendment means that “allegiance” to the United States is required, and undocumented immigrants can’t show allegiance because they broke the law by entering improperly. Therefore, their U.S.-born children are not U.S. citizens.
Lash, Barnett, and Wurman might be dressing up their theories in fancier ways, but they’re following the same tawdry playbook that Eastman used after the 2020 election, when he and Wisconsin attorney Kenneth Chesebro arranged to submit slates of fake electors to vote for Trump in states won by Biden.
The flimsy legal and historical support was dissimilar from the 1960 scheme when Hawaii sent electors for both John F. Kennedy and Richard Nixon, which only happened because a statewide recount stretched past the date for electors to cast their votes.
Michael Rosin, the author of a paper about the 1960 dispute cited by Chesebro, explained that his paper did not suggest that names of competing electors should be sent to Congress without any certification from a state’s governor. But that’s precisely what Eastman and Chesebro did.
These fevered attempts to find even a speck of history or law to hang an argument on have a very important—and very small—audience. No, not Trump. He doesn’t care if he has any legal support for his vicious whims.
The audience here is the six conservatives on the U.S. Supreme Court. In particular, Justices Samuel Alito and Clarence Thomas, who seem to consider themselves historical experts—hence Alito’s spelunking through obviously incorrect history to justify overturning Roe v. Wadeand Thomas’ engaging in “the quest for Goldilocks history” to stretch the 2nd Amendment well past its breaking point.
It doesn’t matter how thin or incorrect these types of analyses are, because they aren’t intended to stand on their own. They exist as a fig leaf—a way to pretend that Trump’s most outrageous stances are grounded in law.
And it’s downright embarrassing to see so many lawyers jump on board.
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