Want to Stop Executive Amnesty? Repeal the Twenty-Second Amendment
David Corbin and Matt Parks
By

Help Wanted: D.C.-area constitutional lawyer. Must be willing to accept large sums of money. Political prudence not required.

Maybe you’ve been wondering why the threatened House lawsuit against President Obama hasn’t been filed: apparently, there’s a shortage of D. C. area lawyers looking for high profile cases and clients. No one will take taxpayer money from poor Speaker Boehner.

Robert Costa and Ed O’Keefe reported in The Washington Post last week that “the suit has wallowed ever since [late June] as GOP lawmakers have struggled to find a D.C. area law firm willing to take up their legal fight.”

This may strike you as suggesting a lack of initiative on the part of the Republican leadership, but the article leaves room for a more flattering excuse: perhaps the Speaker, with Machiavellian craft, “was purposely stalling his legal fight to include whatever actions Obama opts to take to overhaul the nation’s immigration laws.”

Fair enough. But think about how much more powerful the lawsuit would be if Speaker Boehner waited until we see just what the president plans to do about Iran, global warming, and the Obamacare employer mandate. By, say, New Year’s Day, 2017, he could assemble such a powerful case that the most diffident D.C. attorney would be unable to turn him down–if only a court would be willing to take a moot case against a president scheduled to leave office nineteen days later.

We’ve expressed skepticism more than once concerning the merits of the Speaker’s threatened lawsuit and his intentions to act forthrightly against President Obama’s executive overreach. But to be fair, not all of this is his fault.

Blame the Twenty-Second Amendment, which, since 1951, has limited presidents to two terms in office, and thereby has allowed the timid and distracted to run out the clock on every term-limited presidency. It’s also produced a market for clever bumper stickers:

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Imagine if, like many Americans reconsidering their vote for a second Obama term, we had a similar escape hatch from important personal decisions: “I’m sorry, I’m not going to be able to introduce you to my family this Thanksgiving. We’re term-limited to Halloween.”

Alexander Hamilton offered a powerful case against presidential term limits in Federalist 72, arguing that “the duration of the executive magistrate in office and the stability of the system of administration” go hand in hand. Better “to give the officer himself the inclination and the resolution to act his part well” than to promote a system in which the constant struggle for the office produces administrative instability.

Furthermore, Hamilton argued, excluding a president from being re-eligible for office would:

  1. Dissuade talented men from pursuing a challenging office they would have to relinquish quickly or from undertaking arduous, publicly-spirited projects they would have no time to complete.
  2. Tempt an avaricious executive to satisfy his appetites with “recourse to the most corrupt expedients to make the harvest as abundant as it was transitory” and an ambitious executive “to embrace a favorable conjuncture for attempting the prolongation of his power” by “usurpation.”
  3. Prevent experienced leaders from making use of wisdom acquired while in office.
  4. Place the nation in greater danger during times of national emergency.
  5. Make the administration of government “mutable,” “fluctuating,” and “variable.”

The last three points concern the necessary price of any forced change in officeholders. We naturally weigh this against the benefits of such a change when we consider the wisdom of any form of term limits. The first two, however, concern the disposition of the president toward the office–a point often overlooked. At the heart of Hamilton’s argument is this simple principle: that the interest and duty of every party to our republican system ought to coincide. A two-term (or any other) limit for presidents breaks that link in several ways.

Consider first the case of the president himself. The United States, by the grace of God, has never had a president unwilling to relinquish his office at the expiration of his term. But we have suffered from many disappointing second terms, generally characterized in recent times by some combination of scandal, impotence, and imprudent legacy-building.

Scandals are never far from the presidency, but second-term scandals have more than once all but paralyzed it (think Watergate, Iran-Contra, and Clinton-Lewinsky). Weakness too, to one degree or another, is the experience of every lame duck officeholder, less and less able to command or intimidate as the end of a final term draws near. Even what seems to be the best impulse of second term presidents–to build a “legacy”of historical significance–is often spoiled by the divergence between the interests of the outgoing president and the American public at large, since, however meritorious his service, the president must give up power when the sand in his hourglass runs out. Thus, the legacy-builder prefers any international agreement now to a better one later (or, sometimes better yet, none at all), forced executive action over constitutional deliberation (which may produce very different results or, again, no action at all), and the like.

The influence of presidential term limits on Congress creates a similar separation between members’ personal interest and their constitutional duty–to represent themselves at the expense of their constituency. It is natural for Congresses to become risk averse as the end of a presidency draws near, calculating that being well-positioned for the next presidential election year is more important than confronting an outgoing president, whose power and prestige is already waning.

And what of the people? An electorate with a term limit safety net can easily forgive itself, if not for its “stupidity,” then at least for a lack of presidential oversight. After the second midterm election, especially, there is less reason to keep an eye on a lame and lame duck president.

All parties, in sum, have incentives for unrepublican action almost from the moment of the president’s reelection, undermining the system of responsible self-government our Constitution was designed to create.

All parties, in sum, have incentives for unrepublican action almost from the moment of the president’s reelection, undermining the system of responsible self-government our Constitution was designed to create.

How much does this matter? Imagine the current debate over immigration policy in a world without the Twenty-Second Amendment. President Obama, we have every reason to believe, would be much more hesitant to cut the gordian knot with executive action. He’s already delayed action at least once based on political calculation–and that merely on behalf of fellow party-members. How much more cautious would he be if he expected to be on the ballot in 2016–or even was contemplating the possibility? Without a fixed term limit, you might again have the president’s ambition counteracting his own ambition.

At the same time, the Republican leadership’s implicit run-out-the-clock, quiet-lawsuit-in-the-corner strategy would be a non-starter. Make the public case against President Obama’s executive overreach or risk losing to him in 2016 too.

The people would also have more reason to tune in. And altogether we’d have the context for a real public debate on immigration, where all parties are engaged and mutually accountable.

Constitutional amendments should never be proposed lightly, and certainly not merely to solve a temporary political problem. Of course, that reasoning adds to the case against the Twenty-Second Amendment, which was a response to FDR’s unprecedented election to four presidential terms.

The bottom line for this, as for any institutional question, is this: is American liberty more secure with a presidential term limit or without? Alexander Hamilton suggests good reasons in Federalist 72 to believe the latter and our own experience in the sixty years since the ratification of the Twenty-Second Amendment confirms at least some of his fears.

There are, of course, other ways to stop executive amnesty, although long-shot, half-hearted lawsuits should not be among them. But repealing the Twenty-Second Amendment might help do this and more: reconnect the interest and duty of presidents, Congresses, and the people to responsible political action nearer to the limits of the Constitution.

David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook.

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