The 22nd Amendment

Come Back, Bill, Barack and W. All Might Be Forgiven.

This week, David Cameron, the British Prime-Minister, announced that if his government was

elected in May, he would serve a full five-year term and no more. There was no legal requirement for him to say this. His statement will provoke many questions, such as who will succeed him in 2020? How and when will this decision be made? The British political media will have a field day.

The former power given to a British PM to declare an election whenever he chose has been changed by an Act of Parliament, so that governments will always serve for five years unless defeated by a vote of confidence. Of course, the Act can be annulled if Parliament so chooses. However, there is a concern that we seem to be adopting the two term limit American system.

The American Constitution provided that executive power be vested in a President for a four year term. In the 1789 document, no limitation was placed on the number of times a person could stand for election. However, the 22^nd amendment to the Constitution provided that no person shall be elected to the office of the President more than twice.

During the Constitutional Convention, there was much debate on the question of the length of time a president should serve. Fears were expressed about executive power being a potential threat to liberty, hence Edmund Randolph called for a one year term with no re-eligibility. Others, including Alexander Hamilton, argued for a seven year term, likewise with no re-eligibility. Fear was expressed that the one term limit would incline a president to “accumulate wealth and provide for his friends”.

Ultimately, the Convention agreed on a four year presidential term with re-eligibility. Many of the early presidents were elected for second terms. Neither Washington, Jefferson, Madison, Monroe nor Jackson sought election for a third term. Therefore, an unwritten convention arose that no president would seek a third term.

After McKinley’s assassination in 1901, Teddy Roosevelt served as president for almost four years before winning an election in his own right in 1904. Roosevelt announced he would not stand again in 1908 because he “supported the wise custom which limits the President to two terms.” This did not prevent Roosevelt from running again eight years later, his justification being that 1904 was his first election.

Franklin Roosevelt was elected president in 1932. In 1940, he was reluctant to run openly for a third term but at the Democratic National Convention that year, he was nominated on the first ballot. FDR’s Republican challenger announced that, if elected, he would ask Congress to pass a presidential term limit as the first order of business. In any event, FDR was re-elected to third and fourth terms, which would suggest that if a custom or convention existed that presidents would not serve more than two terms, it was not considered binding by the electorate.

By 1946, Republican politicians were bent on limiting perceived presidential term excesses. They had been excluded from the White House for sixteen years. When the Republicans gained control of both houses of Congress that year for the first time in twenty- two years, their first order of business was the introduction of what ultimately became the 22^nd Amendment.   The main argument put forward by the Republicans was that whilst the law had not been broken by FDR, established constitutional tradition had been. An amendment would restore an intention that had been understood, if not spoken.

Another argument put forward was that the balance of power between the three branches of government might be lost if there was insufficient check on the power of the presidency.  There was also an adverse reaction amongst Republicans to the rapid increase in the growth of bureaucratic government under FDR and accordingly they considered it important to limit the power of a president, who was now the head of a large bureaucracy. New government agencies had been created by FDR, all of which were directly answerable to the President, not Congress. There were fears amongst Republicans that future presidential terms of the length of FDR’s would result in an embedded civil service resistant to changes of policy initiated by a new president.

 The Democrats argued the 22^nd amendment would reduce the people’s political free choice, restricting the rights of the electorate. Congressman Joseph Bryson said, “If the people of the United States can be trusted to elect a President for one or two terms, they can also be trusted to determine whether he should continue in office for a third term.” The electorate appeared to show little concern about limiting presidential terms. Gallup polls found it did not register among public political concerns.

Harry Truman argued the Amendment was unwise because it made a “lame duck” out of every second term President for all time in the future. “It puts a President who is in the hardest job in the world.........with one hand behind his back.” The first president to be affected by the Amendment was Eisenhower. He told reporters that the electorate “ought to be able to choose for President anybody that it wants, regardless of the number of terms he has served”.  

Since Eisenhower’s day, there have been only four presidents, Reagan, Clinton, Bush (43) and Obama, who have been subject to 22. But the question arises, does the Amendment do the job? No one has challenged it but there are numerous possibilities which would enable 22 to be circumvented. For example, Mrs Clinton might have her husband stand for the vice presidency. If her ticket won, she could stand aside, perhaps on grounds of ill health, in which event Bill would be back in charge.

Another scenario might be Obama running for a third term in 2016 by popular acclaim. If Congress and the Supreme Court sought to stand in his way, it is not inconceivable, although highly unlikely, that an elderly Democratic senator would run as a stalking horse presidential candidate with Obama on the ticket as VP and stand aside after victory. The ultimate test would be whether Obama has sufficient powers of persuasion to by-pass the Amendment.

All scenarios require the collaboration of a political rival for the presidency and are thus far-fetched, but the essential point is that the legal imperative of the Amendment can be avoided.

The American Constitution was designed to ensure that the President did not have so much power that a tyranny or dictatorship would ensue. Numerous checks and balances curb any excesses of power. Some post war presidents have criticised the Amendment as restrictive, a dilution of power on the office where, since the end of the World War II, the greatest constitutional responsibility lies.

The ways of government in The United Kingdom differ immensely from our American cousins. Whilst Cameron’s decision was personal, will it bind future PMs? If so, we need to question whether we need to adopt term limitation? I don’t think so.