IN THE TIME since the U.S. presidential election was called in favor of former Vice President Joe Biden, President Donald Trump’s words and actions have raised fears among some observers that he might refuse to relinquish power. Constitutional law scholars say there are protections in place to ensure that every president must leave office when his or her term is up—and if those protections were to fail, the country would be facing a much bigger, constitutional crisis.
Although the electoral certification process technically is still ongoing, Biden has emerged the clear winner from the state-by-state vote tallies. Every candidate in modern elections who lost by this wide a margin had conceded by this point. (Formal concessions didn’t become an election custom until 1896, when Republican William McKinley defeated Democrat William Jennings Bryan.)
Trump has so far refused to concede, and his campaign has filed more than a dozen lawsuits in several key battleground states while making unsubstantiated claims of voter fraud; many of the suits are based on such thin evidence that they have already been dismissed.
(No modern presidential candidate has refused to concede. Here’s why that matters.)
While a defeated president’s refusal to step down would be unprecedented in American history, anxiety over how to keep a president’s power in check dates as far back as the 1787 Constitutional Convention. “That was a source of tremendous discussion and concern,” says Rick Pildes, professor of constitutional law at the New York University School of Law.
“But I don’t think that [the framers] talked about or even imagined the possibility that a president would somehow try to stay in office beyond their term,” Pildes says, and as a result, the Constitution doesn’t specifically address such a scenario. But it does protect against it.
During any president’s term, there are two avenues for removing them from office—impeachment and the 25th Amendment, which allows lawmakers to remove a president who is sick or otherwise unable to fulfill his or her duties. Neither of these would apply if someone tried to overstay their term, because that person would no longer be president; U.S. presidents are limited under the Constitution to four-year terms that end on January 20 after an election year. Here’s why Constitutional provisions about transfer of power matter—and how it would apply this year.
A four-year term with a hard end date
The length of the presidential term was the subject of vigorous debate at the Constitutional Convention in 1787. Some delegates advocated for the presidency to last for three years, while others favored a seven-year term. Alexander Hamilton—an ardent Federalist who believed in a strong, centralized government—even pushed for a lifetime term.