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Monday, June 20, 2016

12 years a President?

Following up on my discussion of Veep's penultimate episode and Tom James occupying the White House for twelve years: I asked Brian Kalt (MSU), who wrote the book Constitutional Cliffhangers, which explored various gaps in the constitutional provisions on presidential selection. He wrote the following (reposted here with his permission):

On the question of whether acting as president for four years should count, it does seem right textually. As such, I think it provides one of the strongest tests I can imagine of a person’s commitment to textualism, because it is so much at odds with the purpose of the 22nd Amendment. As with the question of whether there is a distinction between being eligible to be elected president and being eligible to serve at all, the legislative history tells us that the drafters intentionally sacrificed precision and broad coverage on the altar of supposedly simple language.

Following the path I take in my book, I would dodge the question somewhat by focusing on the practical side—positing that it is very unlikely that such a person would be able to get the people to elect him two more times. Conversely, if he did manage to get the people to elect him two more times, it would be hard for the courts or Congress to deny him his prize.

Brian described evolution of the language of the 22d Amendment, where a desire for simplicity of language collided with a desire to count at least some portion of another person's term toward the term, leading to a an unintended hole.

First, the version introduced in the House said that no one: “shall be chosen or serve as President of the United States for any term, or be eligible to hold the office of President during any term, if such person shall have heretofore served as President during the whole or any part of each of any two separate terms.”

The version that passed the House had the same effect, but was more concise: “Any person who has served as President of the United States during all, or portions, of any two terms, shall thereafter be ineligible to hold the office of President.”

The Senate Judiciary Committee loosened the restraints a bit in terms of timing (one day would not count; it had to be a year) but still did not limit it to terms to which someone else had been elected: “A person who has held the office of President, or acted as President, on three hundred and sixty-five calendar days or more in each of two terms shall not be eligible to hold the office of President, or to act as President, for any part of another term.”

Senator Magnuson was the great advocate of simplicity. He also did not want to count any partial terms. To him, then, the Veep character’s position would be just fine. His language was: “No person shall be elected to the office of President more than twice.”

The Senate’s final text (to which the House agreed) accepted Magnuson’s simplification of the “eliminated from what?” language, which was the basis of the discussion here a little while back on whether two-termers can serve as President even though they cannot be elected. But on the other part of the amendment, the “eliminated based on what?” language, the Senate was not willing to fail to count unelected service. When they restored language to count unelected service, though, they used the infelicitous phrasing that we are now discussing: “or acted as President, for more than two years of a term to which some other person was elected President.” They could have just eliminated everything after “term” and avoided our current dilemma.

Posted by Howard Wasserman on June 20, 2016 at 09:34 AM in Constitutional thoughts, Culture, Howard Wasserman | Permalink

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