Thanks to the Constitution’s 22nd Amendment, Donald Trump will be ineligible to run again in 2028. For many who oppose him and fear what he may do in the Oval Office, that is a comforting thought.
They say, “We have already endured four years of a Trump presidency and survived. Four more, and we’ll be rid of him.”
But Trump’s critics should be careful what they wish for.
A term-limited President has greater freedom to do what they want because they won’t have to face the voters again. NPR’s Ron Elving rightly calls a second presidential term “the ultimate trophy in American politics…. [T]hose who win it,” Elving says, “often see it as something more: a chance to change the country—or at least its national government—to make it more to their liking.”
“Second-term presidents,” he continues, “hear the word ‘mandate’ and believe the voters have given them new and almost limitless leeway to deliver marching orders to the nation.” That description seems to fit Trump’s understanding to a tee.
It didn’t take long for Trump and his cronies to claim their trophy and begin to use the “m” word. As Jason Miller, a campaign advisor, put it, “Winning the popular vote provides a mandate and a national public confidence to accomplish what he wants to do from the Oval Office.”
Who knows what “doing whatever he wants” will mean for Trump and the country he will again lead. And, even under normal circumstances, history shows that presidential second terms tend to be more problematic than first terms.
Law professor Jeremy Paul explains:
Presidential term limits create perverse incentives for Presidents on day one. Knowing that the clock is ticking fast means a President may never have time to really get it right on tough policy questions…. So there’s all the more pressure just to get something done. Worse still, long-term consequences of decisions may never come back to benefit or haunt a President whose effective political life ends the day after reelection.
Or as John Fortier and Norman Ornstein suggest, “Second terms have not been good to American presidents.” More importantly, they have often not been good for the American people.
That is likely to be true of a Trump second term, but even more so. With no adults in the room, with immunity from criminal prosecution, and without having to worry about the judgment of voters, the President-elect will have a free hand.
And we can blame what is to come on at least in part on the 22nd Amendment.
It was passed by Congress in 1947 and ratified in 1951. It says, “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.”
Oddly enough, term limiting the President was a form of political payback, driven by Republican resentment at Franklin Delano Roosevelt’s success in winning four terms in the Oval Office.
As Stephen Stathis notes:
In both 1940 and 1944, the Republican party platform called for a constitutional amendment to limit a president to two terms…. [I]n 1946, for the first time in almost two decades, they gained control of Congress…. One of the Republicans’ first priorities in 1946 was a constitutional amendment to prevent any future president from gaining a Roosevelt-type hold on the White House.
Ironically, the first “victim” of their success was Republican President Dwight Eisenhower, who almost certainly would have won a third term in 1960. Another term-limited President who could have been re-elected after two terms in office was Republican Ronald Reagan.
Indeed, after he left the White House, Reagan said, “I would like to start a movement to eliminate the constitutional amendment that was passed a few years ago that limits a President to two terms. Now I say I wouldn’t do that for myself, but for Presidents from here on.”
In his view, rather than advancing democracy by preventing incumbent Presidents from becoming tyrannical the 22nd Amendment “interfered with the right of the people to ‘vote for someone as often as they want to do.’”
The journalist Becky Little notes that debates about presidential term limits and their effects can be traced back to the origins of the Republic. Little explains that “many of the Framers—including [Alexander] Hamilton and [James] Madison—supported a lifetime appointment for presidents selected by Congress and not elected by the people…and when this was put to a vote it failed by only six votes to four.”
The Constitutional Convention “shortened a president’s appointment from life to four years. And because most of the framers didn’t want to set a limit on how many four-year terms a president could serve, they didn’t say anything about it in the Constitution.”
Little reminds us that “George Washington and Thomas Jefferson ended up setting a two-term precedent. Washington declined to run a third time, but did clarify that he would’ve if he felt he was needed.” That is why, as Jeremy Paul explains, “George Washington himself was a strong opponent of placing term limits for Presidents in our Constitution.”
On the other hand, Little argues, Jefferson “specifically thought that two terms was enough for one person, and more might overextend executive power.” It took almost two hundred years for Jefferson’s view to become the law of the land.
But instead of taming the executive, term limits have brought out the worst in those Presidents who knew they would not have to face the electorate again. Fortier and Orenstein report that “Scandal haunts second-term presidents…. [G]enerally, scandal needs time to germinate, to be uncovered, and to be regarded by the press and public as timely or relevant.”
“Virtually all second-term presidents,” they observe, “start with a healthy dose of hubris, believing that their reelection has proven their critics wrong, that their priorities were given a rocket boost, and, especially for modern ones, that they were left with immense freedom because they no longer have to worry about petty concerns such as getting reelected.”
Such freedom is a gift to someone with Donald Trump’s plans.
When Trump takes office in January he intends to “massively expand the power of the presidency, centralizing control within the Oval Office.” Examples include his plan to “strip tens of thousands of career civil servants of protections and replace them with political hires and exert political influence over the Justice Department.”
In the present moment, there is nothing that can be done about the 22nd Amendment. But we should recognize that it makes the current situation even worse that it would otherwise be.
For a power-hungry President like Donald Trump, the term limits Jefferson favored might well result in the very thing he feared, “overextended executive power,” and with that power, an abridgement of American liberties.
