The last chapter that I will preview from my new book, Constitutional Cliffhangers, is Chapter 6. It deals with a potential loophole in the Twenty-Second Amendment’s term limits for presidents. It’s also the only chapter that cites a commenter from the Volokh Conspiracy.
The term-limit loophole has been noted and discussed a fair amount, dating back to the first president to be constrained by the Twenty-Second Amendment (Eisenhower). There have been robust discussions in newspapers, law-review articles, and blogs. Smart people on both sides have gotten surprisingly vehement about the question.
No president has attempted to exploit the loophole, and President Clinton spoke against it. Still, in the long term, the fates of term-limit provisions around the world suggest that we should not be too complacent over the long term.
Here is the chapter’s opening:
President Frederick is three years into his second term. He remains so popular that some pundits have floated the idea of repealing the Twenty-Second Amendment and letting him run for a third term. Frederick laughs off such talk, and a national opinion poll shows that only 12 percent of voters support repeal. Still, Frederick casts a large shadow; on the eve of primary season, his Democrats have no clear front-runner for the nomination to replace him.
Then disaster strikes: a treacherous terrorist attack kills tens of thousands of Americans. The country rallies behind President Frederick as he leads a strong offensive against the terrorists and their sponsors. His approval rating shoots into the nineties. While the country is badly rattled by the attack, people feel safer with Frederick in charge.
Frederick feels pretty good being in charge too. Now, when the Twenty-Second Amendment comes up, he sounds increasingly coy. Support for repeal rises to almost 50 percent in the polls. But Republicans — and several prominent Democrats — argue against amending the Constitution in the heat of the moment, so the congressional and state supermajorities needed for an amendment are well out of reach.
At this point, a startling idea gains traction among Democrats: President Frederick can run for vice president. Many people would find Frederick’s mere presence reassuring. Others envision a figurehead president who would leave VP Frederick in charge or perhaps even resign and let Frederick become president again. This last maneuver would be constitutional, they say, because the Twenty-Second Amendment only says that no one “shall be elected to the office of the President more than twice,” and Frederick would not be “elected” president. The amendment says nothing about a two-term president “succeeding” to the presidency, or “serving” as president. Buoyed by Frederick’s stratospheric popularity and the atmosphere of crisis, the plan steadily gains support, and Frederick’s anointed surrogate, Representative Stevens, sweeps the Democratic presidential primaries.
The Republicans object forcefully. As one senator puts it on a Sunday morning talk show, “We’re all grateful to President Frederick for his leadership during these difficult months, but everybody knows we have a two-term limit. We shouldn’t let the Constitution be a casualty of this war.” Frederick is officially nominated for vice president at the Democratic convention, and the litigation floodgates open.
Later on in the chapter, we get this exchange on a cable news show:
Professor Scott: Look, I can’t tell you why the drafters of the Twenty-Second Amendment limited it this way. But they did. When they wrote the first draft of the amendment, they said two-termers couldn’t “hold the office.” But then, they changed it from “hold the office” to “be elected.” You see? They initially banned what President Frederick is trying to do, but then they changed the language until it didn’t say that anymore. They said “elected” only, they said it on purpose, and that’s that.
Professor McCulloch: The Twenty-Second Amendment was written to keep two-termers out. The Twelfth Amendment says two-termers can’t run for vice president either. Frederick is a two-termer. It’s not that complicated, and people know it. Professor Scott likes talking about the “plain meaning of the text” here, but that just means he wants to ignore the context and ignore the clear purpose of the amendment and ignore the way people have understood this language for generations. If the Twenty-Second Amendment is this easy to avoid, then it means nothing, and judges don’t like to interpret the Constitution as an exercise in futility. I think Professor Scott and I agree on one thing, though: if the courts don’t prevent this, the people will still get to decide. Lots of voters who would otherwise vote for President Frederick are going to vote against him, because they recognize how inappropriate this is.
I don’t want to get into the legal arguments about the Twelfth and Twenty-Second Amendments here, because so many people have written so much about them already, including on this blog. Briefly, the question for the Twenty-Second Amendment is whether it bars two-termers only from being elected again (as the text says) or from serving anymore at all (as the spirit and the popular understanding of the amendment suggest). For the Twelfth Amendment, the issue is whether “eligible” (in the phrase “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States”) means eligible to be elected or eligible to serve at all.
Instead of wading into these questions here (I don’t want to just reproduce my whole book, after all), I want to focus on the cautionary tale this represents about constitutional drafting.
An earlier draft of the Twenty-Second Amendment would have avoided this problem, just as Professor McCulloch suggests in the last block quote above. That language was changed in a bold move to “simplify” the language down to 13 words, thus opening the loophole. This was foolish. First of all, the language quickly got re-complicated anyway back up to 121 words (though not in a way that noticed, let alone closed, the loophole). Second, it is more important that technical “nuts and bolts” constitutional language be precise than that it be elegant.
The other side of the argument is that the risks are too low to worry about. And it is truly hard to imagine any president trying to pull this trick; the president would need to have enough support to win even after subtracting out all the would-be supporters who (1) think he is constitutionally ineligible to serve or (2) think that term limits should be observed even if they are not technically required. As Dean Acheson put it back in the Eisenhower days, a two-term president running for vice president would be “more unlikely than unconstitutional.”
But low risk is no reason to let our guards down. What is gained by having a more elegantly phrased amendment that leaves even the slightest potential loophole open? Whatever you think of the possibility of this cliffhanger occurring, it’s hard to argue that we wouldn’t be better off with an amendment that was a few words longer but covered all the bases.
I have some ideas about ways to improve the constitutional drafting process, which I will discuss tomorrow. For now, the point is that we can and should do a better job when dealing with issues like these. For every expert adamant that two-termers cannot serve again (my favorite line from one professor, responding to his opponent: “The contention is so preposterous, and so obviously wrong, that one wonders how a nationally renowned law professor at one of the top law schools in the nation could make such a mistake. . . . [He] quite obviously knows little about the Constitution.”), there is an expert adamant that they can. While shoddy drafting makes it easier for people like me to have their fun writing about hypothetical craziness, it would be better for everyone to keep doubt and uncertainty about presidential power at a minimum
With all due respect to Dean Acheson (and to the commenters here at VC who will say that this chapter is stupid because it simply could never happen), I will just close with the words I use to end Chapter 6: “Constitutional disputes do not arise in a vacuum, and our democracy has had its weak moments. It would be foolish to assume that the United States will never have a president who is more popular than the Constitution — or, more to the point, more popular than one disputable interpretation of it.”
Rich says:
Actually Mayor Bloomberg of NYC immediately came to mind so maybe not so far fetched.
January 26, 2012, 9:28 amJoeJP says:
That’s a good call Rich.
The scenario set up is interesting but how about if he simply was made Secretary of State or something? That seems less blatant and even reasonable w/o raising 12A concerns.
January 26, 2012, 9:34 amProf. Brian Kalt, guest-blogging says:
Rich: There was a study done that counted up all the times and ways term limits have been run over. Bloomberg didn’t use a loophole, but others have, or have just ignored them.
JoeJP: The chapter gets into those twists as well. Short answer: if you think there is a 12A problem, you probably think that there is a 22A problem too. Still, the chapter does explore other avenues from further down on the line of succession.
January 26, 2012, 9:37 amZathras says:
This chapter should be subtitled “The Putin Variation.”
January 26, 2012, 9:50 amJoe says:
Thanks. The SOS position seems to be a good “power behind the throne” position & the fact he might not be able to become President would make it less controversial since he wouldn’t be seen to be taking advantage of a loophole in a blatant fashion. I realize this is just an excerpt and the book covers more ground. It sounds good.
January 26, 2012, 9:52 amUgh says:
Apparently all these cliffhangers require violence, at least based on the guest-blogging so far.
January 26, 2012, 9:54 amSykes Five says:
You should look at behavior in states where governors are term-limited, where there is a long history of evasion. The usual procedure to elude term limits was to have Mrs. Incumbent act as Mr. Incumbent’s proxy.
January 26, 2012, 9:59 amProf. Brian Kalt, guest-blogging says:
Ugh: This one doesn’t, and the three I won’t be blogging about (prosecution, self-pardons, and late impeachment) don’t.
Sykes Five: Lurleen Wallace makes an appearance in the book, to make the point that there are other ways for someone to keep power than staying in office (Putin seems relevant there too).
January 26, 2012, 10:04 amMoish says:
To gain clarity, let’s change the question a little.
Instead of looking at a two-term president running (or trying to run) for the vice presidency, how about looking a two-termer running for Congress. And to make it concrete I’ll go back to Clinton instead of Frederick.
Suppose Bill Clinton runs for a seat in the House of Representatives. Suppose he wins. Suppose he is elected Speaker of the House. Nothing wrong with any of that, is there? Now, suppose the President and Vice President both die. Clinton is next in line. Clearly, the 22nd Ammendment doesn’t bar him from assuming the presidency (since he is not being elected, but just assuming the office per the rules of succession).
Having looked at that, we can return to the basic question of whether the two-term president can be elected Vice President. I can only conclude that he is eligible to be president (even if not to be elected President. Based on that, the 12th Ammendment does not limit his eligibility to be Vice President, or to be elceted Vice President.
January 26, 2012, 10:10 amUgh says:
A “treacherous terrorist attack kills tens of thousands of Americans” isn’t violence?
January 26, 2012, 10:22 amKen says:
I thought serving >50% of somebody else’s term “counted” as one of your two terms. Why would this be so if the drafters intended you to be able to serve 99+% of somebody else’s term down the road?
January 26, 2012, 10:30 amUgh says:
Trying again: I see a reference to tens of thousands of dead Americans as a result of terrorism in this cliffhanger.
January 26, 2012, 10:31 amProf. Brian Kalt, guest-blogging says:
Ugh: I see what you mean now. I had taken you to mean that they would be resolved with violence, with the candidate attracting the scariest mobs winning the day. But yes, times of extreme violence provide fertile ground for constitutional controversy.
Ken: The point is that the drafters screwed up. Their intent is clear, but so is the text they wrote, and the text doesn’t reflect that intent. It’s not like my post yesterday, where the (slight) ambiguity in the text can be resolved by looking at intent. Here, text and intent are at direct odds, so it comes down to which you favor.
January 26, 2012, 10:35 amDave N. says:
Seems more like the Peron Variation than the Wallace Variation.
January 26, 2012, 10:41 amMusing Jester says:
Isn’t this basically what Bill Clinton was hoping for and sort of what he tried to pull in 2000 when it didn’t look like Gore would steal the election in enough time?
January 26, 2012, 11:03 amloki13 says:
I’m a big fan of legislative intent informing the text. However, when the text is crystal clear, you can’t really argue against it. Unless there’s some argument for scrivener’s error (and you can’t really say that- despite the protestations that it was changed to make it look nice, there was ample opportunity to re-change it when the expanded it again) the text is controlling, and it says “elected.”
Which leads to the most basic point- no written words, or wonderful Constitution, will prevent us from sliding into a horrible situation if people are venal enough and the surrounding circumstances are dire enough.
January 26, 2012, 11:27 amGOOCH says:
Is it true that the popular understanding is “held office” and not “elected?” What about LBJ? Teddy Roosevelt? Roosevelt ran and lost while LBJ chose not to run…but I don’t seem to recall argument to the effect that they were constitutionally barred from running. Is it because their inital, unelected term wasn’t a full term? So if a VP fulfill’s .999 of a term it still doesn’t count?
Had Ford been elected in 76, could he have run again in 80? Would there have been a constitutional challenge? D.GOOCH
January 26, 2012, 11:28 amKatja says:
Senegal currently has a related problem with a two-term president seeking a third term (though via a different loophole [1]); the Constitutional Council will hand down its decision tomorrow. Scarily enough, legal scholars were debating it on TV, too.
[1] The sticking point appears to be how the transitional provision in article 104 of the Senegalese constitution is to be interpreted. The new constitution reduces the length of a term from seven to five years and limits the presidency to two terms. Article 104 was intended to not cut the term of the already elected president short, but to allow him to serve the full seven years. (“Le Président de la République en fonction poursuit son mandat jusqu’à son terme. Toutes les autres dispositions de la présente Constitution lui sont applicables.”) President Wade argues that this first term (which started before the constitution came into force) cannot be counted against the term limit.
January 26, 2012, 11:39 amgeokstr says:
This is not really a problem.
Once she reaches the eligible age of 25, Princess Malia will be elevated to Queen Malia by El Presidentess-for-Life Michelle, as authorized under new emergency regulations passed by the Federal Election Board, ably headed by Valerie Jarrett, Chairperson-for-Life.
No need to repeal the 22A, as the DWEM-written Constitution doesn’t expressly prohibit establishing the positions of Queen or El Presidentess-for-Life, according to the 5-4 decision of the SCOTUS, written by The Hon. Justice Barack in 2013, after he appointed himself Dear Supreme Court Leader in the final act of his presidency, citing all sorts of wisps and auras and seepages from all over the Constitution.
January 26, 2012, 11:53 amAnderson says:
Isn’t this basically what Bill Clinton was hoping for and sort of what he tried to pull in 2000 when it didn’t look like Gore would steal the election in enough time?
Amazing – a blog comment from another universe! Has the portal closed yet? Post something else, Musing Jester!
January 26, 2012, 11:54 amloki13 says:
What’s the term for “beyond self-parody?” Put another way, there’s comedy, there’s high comedy, there’s Charlton Heston playing a Mexican Federale, and then somewhere, far beyond that, there’s geokstr.
January 26, 2012, 11:57 amPersonFromPorlock says:
The desire to write amendments that ‘sound constitutional’ can be a trap: VC’s own Randy Barnett has proposed a few that do, which if enacted as written would allow large trucks to pass through unscathed.
January 26, 2012, 12:00 pmBumpjon says:
I had always thought that the “elected” language was to prevent someone from getting jipped a term because he succeeded to the presidency near the end of one term and then was elected to another.
January 26, 2012, 12:07 pmSeaDrive says:
No, more melodrama needed:
The President and Vice President, members of the Whig party, have been caught committing high crimes and misdemeanors. A former two-term President and member of the Coffee Urn Party is appointed by a Governor to fill a vacancy in the House with the expectation that he will be elected Speaker, and be in place to re-occupy the White House when the Senate is through convicting the soon-to-be-impeached occupants.
January 26, 2012, 12:08 pmPersonFromPorlock says:
Test
January 26, 2012, 12:21 pmBrett Bellmore says:
Come on, now, you might not want to “get into” the 12th amendment, but that doesn’t make it unclear.
Granted, with enough bad faith, you can ‘interpret’ anything to mean anything, but a two term President running for VP takes stratospheric levels of bad faith.
Hm, come to think of it, that doesn’t actually rule it out, in today’s Washington…
January 26, 2012, 12:28 pmDavid says:
I’m pretty sure running for any office above city council in a town with a three-digit population requires stratospheric levels of bad faith.
January 26, 2012, 12:35 pmMoish says:
@SeaDrive:
My scenario may seem melodramatic. Or it may not. I guess that depends on the reader. The only real derama or melodrama is in the two deaths. But my intent was simply to note that there are other ways of becoming president than getting elected (please, no coup or Florida jokes). Since the 22nd Ammendment is worded as it is, a two-term President can become President again without being elected — though admittedly that requires events beyond his or her controlto work out just so.
@GGOCH: If Ford had been elected in 1976, he could not have been reelected in 1980. That much is crystal clear. The difference between him and LBJ is that LBJ served less than two years of Kennedy’s term and Ford served more than two years of Nixon’s term. The 22nd Ammendment draws that distinction. If you served more than two years of someone else’s term you can only be elected once.
January 26, 2012, 12:42 pmMoish says:
@SeaDrive: Sorry. Wasn’t trying to be melodramatic. Actually the two deaths are the only melodrama. I was trying to point out that there are other ways of becoming president, and the 22nd Ammendment doesn’t address those. I would prefer to stick to a two-term president becoming vice president and then succeeding when the president dies. Less melodramatic, yes? But then I’d have people pointing out that you can’t prove that X can occur by starting with the assumption that X occurs. I would note the flaw: You can’t argue that Y is disallowed and use an argument that starts with the assumption that Y is disallowed. But I wouldn’t convince anyone. My purpose was to make a point and illustrate it in a way that would convince people that it’s correct (as opposed to arguing for the sake of arguing and convincing no one).
@GOOCH: If Ford had been elected in 1976 he would have been ineligible to be reelected in 1980. The difference between him and LBJ is that he served more than two years of Nixon’s term while LBJ served less than two years of JFK’s term. The 22nd ammendment ios crystal clear on that. If you serve more than two years of someone els’s term you can only be elected once.
January 26, 2012, 12:56 pmJust Dropping By says:
I respectfully disagree. To me the plain text of the 22nd Amendment would definitely allow a former two term president to become president again through any legal mechanism other than actually running directly for a third term. My entire basis for believing that a former two term president could never again hold the office of president rests on the language of the 12th Amendment, thus it seems very bizarre to me to separate the two even as an academic exercise.
January 26, 2012, 12:59 pmVisitor Again says:
Isn’t it a little early to be discussing President Obama’s plans for a third term (in the guise of a piece of fiction) when he hasn’t even finished his first term and has yet to be elected for his second term? Then again, this is the Volokh Conspiracy, and I guess I shouldn’t be surprised that it’s ahead of everyone else in anticipating the future.
Edit: With apologies to earlier commenters whose posts I had not read when I submitted this.
January 26, 2012, 1:03 pmErik says:
No more than President Reagan would have wanted for George H.W. Bush being elected – i.e., not really much at all.
I agree with Bumpjon as far as interpretation goes. They said “elected” because they wanted a Vice President to get the chance to have two terms as President.
January 26, 2012, 1:05 pmJeffDG says:
When I look at the 22nd and the 12th, and the argument that the 12th prohibits a former 2-term POTUS from running for VPOTUS, I have to ask: “If they had wanted it to say that in the 22nd, then why didn’t they put it there?”
They could have prohibited a 2-term POTUS from running for POTUS or VPOTUS, but they didn’t do so, therefore, I must assume they didn’t mean to do so.
January 26, 2012, 2:08 pmMoish says:
Except that there are still other ways. As I noted above, The Speaker of the House is next in line after the Vice President.
January 26, 2012, 2:14 pmBrom says:
@Just Dropping By – Your distinction doesn’t make any sense. You acknowledge that the 22nd Amendment would permit a two-term President to serve a third term as long as he or she did not get elected to that third term. Therefore, under that view, a two-term President is not “constitutionally ineligible to the office of President,” and would not be barred by the 12th Amendment from serving as Vice-President. I think Professor Kalt was right: either you see a problem with both the 12th and 22nd Amendments, or with neither; I don’t see a logically-consistent way to find a problem under one but not the other.
January 26, 2012, 2:38 pmr_r says:
It seems perfectly reasonably to me to want an exception to term limits that takes this kind of overwhelming support and trust in one’s subordinates to make happen.
January 26, 2012, 2:40 pmcboygan says:
I agree with the sentiment that “low risk is no reason to let our guards down.” In Wisconsin, we are currently suffering through a statewide recall process being undertaken using poorly drafted laws that I am sure nobody ever expected would be used. Whether it is a constitutional amendment, a federal health care law passed at midnight, or an obscure state recall law, our lawmakers ought to be very careful.
January 26, 2012, 3:17 pmDave N. says:
Except of course, that Article I, Section 2 of the Constitution requires special elections when there are vacancies in the House.
Under the 17th Amendment, a Governor can only fill a vacancy in the Senate if the Legislature allows him to do so.
For those with long memories, the Commonwealth of Massachusetts stripped then Governor Mitt Romney if this authority in anticipation of Senator Kerry’s election as President. The power was then partly restored, allowing Governor Deval Patrick to appoint a temporary placeholder until the special election that elevated Scott Brown after the death of Senator Kennedy.
January 26, 2012, 3:28 pmDave N. says:
Lyndon Johnson became President on November 22, 1963, so there was less than two years remaining of President Kennedy’s term, which otherwise would have ended on January 20, 1965.
On the other hand, Gerald Ford became President when there were more than two years remaining of President Nixon’s term. Nixon resigned on August 9, 1974, more than two years before January 20, 1977.
As for Theodore Roosevelt, he would have been ineligible had the 25th Amendment been in effect. President McKinley died on September 14, 1901, barely six months after his second term began on March 5, 1901. As a result, Roosevelt served for almost 3.5 years of President McKinley’s term and then all four years of his own term when he was elected in 1904.
Roosevelt was a former President when he ran in 1912. Ironically, had he not died at the relatively young age of 60, he likely would have been elected President again in 1920.
So, as it currently stands, George H.W. Bush is eligible to run again for President. George W. Bush is not.
January 26, 2012, 3:40 pmCan't find a good name says:
Wallace did it first. Lurleen Wallace became governor of Alabama in 1967, while Isabel Peron became president of Argentina in 1974. Also, Lurleen ran for governor because her husband was term-limited, while Isabel became president because her husband died in office. (Eva Peron had been a potential nominee for VP of Argentina in 1951, but if she had run it wouldn’t have been due to a plan to evade term limits — the presidency of Argentina was not subject to term limits at that time.)
January 26, 2012, 4:35 pmSykes Five says:
Arguably, Miriam “Ma” Ferguson of Texas (gov. 1925-27, 1933-35) is an earlier example of the wife as proxy to avoid the husband’s disability. Her husband, James “Pa” Ferguson (gov. 1915-17) had been convicted of corruption, impeached, and barred from holding office. “Ma” ran as a proxy for “Pa” and was elected twice.
January 26, 2012, 4:53 pmMusing Jester says:
I think it is you who is living in the alternate universe. While Al Gore, enabled by a scant majority of 4 justices of the Florida Supreme Court, was attempting to steal the election by conducting a “recount” focused only in a few Democrat counties, in an attempt to find enough votes so that he would win the state, Bill Clinton “floated” the idea that if the whole controversy wasn’t settled in time he could just “stick around” for awhile. The only reason this didn’t happen is because five brave patriots on the United States Supreme Court swooped in with enough time left to stop Al Gore, and his fat cat corporate contributor and super PAC funded army of lawyers, from being able to finish execution of their diabolic plan.
January 26, 2012, 5:08 pmB.D. says:
Even though you don’t want to discuss it, the text of the 12th amendment seems obvious to me and controlling of the issue.
January 26, 2012, 5:31 pmbyomtov says:
Is it just possible that the loophole was left open on purpose, or that at least some who were aware of it at the time liked it?
Just for fun, let’s say the drafters thought about the possibility that the country might really want the ostensibly ineligible President to stay in office, possibly in the scenario described.
So they leave a loophole such that, if the President is overwhelmingly popular, it can happen. Was the wording necessarily a mistake?
January 26, 2012, 5:39 pmSyd Henderson says:
I interpret the 12th Amendment to forbid him running for Vice President, and also him using the 25th Amendment as a back door. However, I see nothing that forbids him from being elected Speaker of the House, then becoming President when the President and Vice President both resign (except for the Secretary of State arguing he should be President).
January 26, 2012, 5:42 pmgeokstr says:
Yes, I understand that your belief is that only leftists are allowed to use sarcasm and ridicule, as stated in the Book of St Saul. Too bad. Your side has been using it for 50 years; it’s our turn now to join in the fun. Wait until we start using the other 12 Rules too and see how you like them apples when you have to eat them.
Then we can run our own ill-prepared, hyper-ideological community organizer for president, just like you did.
January 26, 2012, 6:33 pmloki13 says:
Possible topics:
1. J. Aldridge is to Bingham as geokstr is to Alinsky.*
2. In the past eight years, the name “Alinsky” has passed the lips of more conservatives than was uttered by every leftist on every campus in the 60s and 70s.
3. It is an odd thing indeed to dredge up something that you find so deplorable, ascribe it to your opponents, and then seek to practice it yourself. I assume that if geokstr ever believes that “the left” engages in child molestation, he should be barred from the purchase of candy and forbidden to drive a van.
4. The estate of Mr. Alinsky is probably thanking the conservative movement for the lucre they have provided. Currently, people who purchase his book also purchase such book as “The Road to Serfdom” and “The Naked Communist”. Heh.
Discuss.
*For those keeping track at home, yes, drink.
January 26, 2012, 6:45 pmBrett Bellmore says:
They didn’t put it there, because it would have been redundant. They similarly didn’t put the requirement that a President be 35 years of age in the 22nd amendment.
I mean, “Not withstanding any provision of this amendment, no person who lacks the qualifications to be President shall become President.”; Kinda redundant, isn’t it?
January 26, 2012, 7:14 pmAnthony J. Lawrence says:
Amendment 22, Section 1. 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 this article shall not apply to any person holding the office of President when this article was proposed by the Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.
Within the same section of the 22nd, we have (1) be elected (2) held/holding the office, and (3) acted/acting as President. So, it seems rather textually clear to me that there was ample capability to clearly proscribe third (or more) terms, but that this was not done.
Now, I have not read the ratifying era materials or done any historical work on the matter, but it was always my understanding that this was done in response to FDRs four terms, where he formally broke the tradition. But people loved FDR, so what gives? He was a president more popular than the constitution if there ever was one (the foolishness lies in thinking we haven’t already had at least one). I don’t know that I would have liked FDR – in fact, I rather think I wouldn’t have. But I’m no Jefferson, so I don’t see what all the fuss is about. I’d rather have a good leader for life, if we could find one who would have us.
January 26, 2012, 7:17 pmGOOCH says:
Thanks to Moish and Dave N. for clarifying the rule on VP’s serving partial terms. Since the 22nd amendment makes that clear, it would seem to me that this would argue against the “elected” versus “held” interpretation. IOW, why rule out running twice based on a “more than half” rule if the framers of the amendment were permitting any number of terms for those succeeding to the presidency.
There’s also the democratic objection: does it make since to permit additional terms for unelected presidents but not for elected presidents? I submit it does not. D.GOOCH
January 26, 2012, 9:59 pmPZ says:
Well, you’ve sold me… just added this book to my Amazon wishlist. Thanks Prof!
January 26, 2012, 10:12 pmJ.T. Wenting says:
Clinton, anyone? Except of course Bill was Hillary’s proxy for 2 terms, before Hillary herself decided to try for the presidency and ended up SecState as well (and thus again the power behind the throne of a president who can’t tie his own shoelaces, at least where foreign relations are concerned).
January 27, 2012, 1:05 amJ.T. Wenting says:
And there are unelected people in line as well, further back. Though chances of them being appointed president are of course even more astronomical (decapitation of the entire cabinet and congress e.g. would lead to a senior military commander holding the job, can’t remember which one).
January 27, 2012, 1:27 amStones Cry Out - If they keep silent… » Things Heard: e205v5 says:
[...] third term loophole. This entry is filed under Links, Mark O.. You can follow any responses to this entry through [...]
January 27, 2012, 11:20 amharmon says:
When we turn to the 22d Amendment, we see that it “shall not prevent any person who may be … acting as President, during the term within which this article becomes operative from holding the office of President or acting as President during the remainder of such term.”
Now, clearly this means that “this amendment does not kick the person who is acting as President when it becomes effective out of office if he is in his 3rd term.”
So, but for this clause, a 3rd termer who has succeeded to the Presidency (i.e., acting as President) to get that 3rd term would immediately become ineligible to continue hold office when the Amendment was ratified. There would be no need to protect him with this clause if the Amendment did not otherwise disqualify him.
I can’t see any other basis for this exception to exist. So it follows that this Amendment disqualifies anyone who has twice been elected President from ever being President again.
January 27, 2012, 2:13 pmProf. Brian Kalt, guest-blogging says:
Harmon, that clause applied only to Harry Truman, who was president when the amendment became operative in 1951.
January 27, 2012, 2:18 pmharmon says:
I understand that Prof. Kalt did not want to address the legal argument, just the drafting issue. I guess that I don’t see any drafting problem here. Standard rules of statutory construction easily apple here, don’t they?
January 27, 2012, 2:22 pmNickM says:
Where does Sean Connery playing a Lithuanian captain of a Soviet nuclear sub, or Jean Claude van Damme playing an American, fall on your scale?
Nick
January 28, 2012, 3:47 amDavid Chesler says:
Vaguely related, I’ve asked how does the two years get counted?
January 29, 2012, 11:31 amExample, Obama decides to run for VP this year, while Hillary serves in her own name. In late November 2014 something happens and Obama assumes the Presidency. Can he be elected President for his second full term on election day November 8, 2016, because he will not then have acted as President for more than two years of a term to which some other person was elected President?
Or is he disqualified because by the time he gets “elected” by the Electoral College on December 19, 2016, he will have acted two years?
In which case, let him assume office on January 15, 2015 — he will not have acted as President for two years when the EC meets, but they know he will have before he gets inaugurated? (The amendment does say “elected” not “inaugurated”.)
And of course set aside that Hillary acted as President during most of Bill’s time.
Brian Kalt says:
David, the term runs from January 20 to January 20. The key date is thus January 20, 2015–if he steps into the office on or before that day, it counts as a second term for 22A purposes.
January 29, 2012, 7:39 pmDavid Chesler says:
Brian, what if assumes the office on January 15, 2015, and he goes before the Electoral College just before they elect him, on December 19, 2016, and says “Some of you may think I am not eligible because by the time I’m inaugurated I will have served two years of someone else’s term. But I have not yet done so, and in fact, I promise that on January 10, 2017, I will step down and let my VP take over, so even by Inauguration Day I will not have served two years.”?
And then what if he breaks his promise?
January 30, 2012, 2:40 pmJoe Horton says:
Louisiana law used to read that the governor could not succeed himself more than once at a time. Even Huey “The Kingfish” Long accepted it as a matter of course.
Some years later, well after Huey’s assassinyounger his younger brother Earl, while serving his second term wondered, “what would happen if I stepped down form governor six months before the next election?”
As A. J. Libeling put it, “even Huey didn’t think of that.”
The hue and cry that followed quickly escalated the battle to the Louisiana Supreme Court. The justices held that it was within the letter of the law. If the legislature chose to change the law, they could, but that would not be timely, and, if Earl received the popular vote, he’d be in the following term.
Which is exactly what happened, except that I believe he didn’t live to actually occupy the governor’s mansion a third term.
Apart from a few historical inaccuracies (of which this was not an example), the movie, Blaze, pretty much gets it right. And old Earl was scruffy to Paul Newman’s, well, Paul Newman.
February 1, 2012, 1:29 am