Could President Obama Serve 3 Terms? Check Out the Term-Limit Loophole

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.”