Is a Third Obama Term Really Impossible?
Speaking in Africa the other day, Obama discussed his future:
I have to also say that Africa's democratic progress is also at risk when leaders refuse to step aside when their terms end. [Applause.] Now, let me be honest with you — I do not understand this. [Laughter.] I am in my second term. It has been an extraordinary privilege for me to serve as President of the United States. I cannot imagine a greater honor or a more interesting job. I love my work. But under our Constitution, I cannot run again. [Laughter and applause.] I can't run again. I actually think I'm a pretty good president — I think if I ran I could win. [Laughter and applause.] But I can't.
So there's a lot that I'd like to do to keep America moving, but the law is the law. [Applause.] And no one person is above the law. Not even the President. [Applause.[ And I'll be honest with you — I'm looking forward to life after being President. [Laughter.]
This is good stuff, reassuring to those of us who regard Obama's tenure as a national misfortune. But Obama's record for truthfulness and candor is not stellar — "you can keep your health plan" — and he takes the con man's pleasure in misdirection. So play "What if?" and ask: Just how solid are the barriers that preclude another term for Obama? The answer is that they are flimsy indeed.
The legal barrier is found in these words, from the 22nd Amendment: "No person shall be elected to the office of the President more than twice."
One route to a third term would be a devious one: Obama could run for vice president on a ticket with a placeholder who would be expected to promptly resign, a scenario that would not technically contravene the language of the amendment, since he would not have been "elected" to office of president. Eisenhower mentioned this possibility in 1959, and it received serious discussion.
The alternative would be a direct challenge, with Obama is nominated for a third term by the Democratic convention. Either scenario raises complex legal issues.
The 22nd Amendment contains no detail on enforcement of the prohibition. The legislative history is scanty. Nor is it clear how the amendment interacts with other Constitutional provisions governing presidential elections, Article II and the Twelfth Amendment. Article II says a president must be a natural-born citizen and 35 years old. The Twelfth Amendment, on the other hand, says "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President." So does the two-term limit — enacted long after both of these provisions, with no explicit reference to either of them, and limited to those "elected" president — render someone "constitutionally ineligible" to be vice president? Who knows?
A justice willing to look at the overall intent of the law, such as Roberts or the Four Horsepersons of Progressivism, could decide that the Twelfth Amendment was intended to incorporate any later additions to the eligibility requirement, such as the two-term limit; otherwise, why not simply repeat the qualifications? In contrast, a stick-to-the language textualist, such as Scalia, might well say that the 22nd Amendment's language precludes only a third election, and does not make someone "constitutionally ineligible to the office of President." For example, an ex-president might enter the House, become speaker, and succeed to the presidency if the president and vice president croaked. In drafting the 22nd Amendment, had Congress wished to bar this, it could have said so plainly rather than using the ambiguous "elected ... more than twice" formulation.
Under either scenario, given the lack of any specific enforcement mechanism, the Supreme Court might well rule that responsibility for enforcement lies with the people via the electoral process or with the Congress, and that if these mechanisms do not act then the courts will not bail them out.
To understand the power of this position, start with the fact that the quadrennial November election is not for the president directly, but for electors selected by state organizations in any manner governed by state law (see, e.g., Virginia). No formal presidential selection occurs until the electoral vote is collected in December, as governed by Article II and the Twelfth Amendment.
The procedures for counting and validating the electoral vote are then governed by the Electoral Count Act of 1887. The Congressional Research Service has a good summary, but for purposes of this article it is sufficient to say that nothing in it clearly covers the presidential-qualifications issue. The focus is all on disputes over the validity of state electoral votes.
If the Democrats were to nominate Obama for a third term, through either mechanism, it is certain that dozens of lawsuits would be filed to knock his electors off state ballots. But as a matter of federal law, success would be unlikely.
The judicial doctrines of "standing" and "justiciability" prevent a citizen from suing over a generalized political injury. (The distinction between the two doctrines is thin and discussion often blurred. Standing concerns the right of a particular person to bring a lawsuit. Justiciability asks whether the issue is one that lends itself to resolution by judicial process. If a citizen sues to stop a particular expenditure, he will lose on both grounds. He lacks standing to challenge a budget decision, and such choices are not justiciable because they are not amenable to review by courts.)
A key issue is that until the Electoral College meets, there has been no election as far as the Constitution is concerned. True, a bunch of people will have run for the state post of "Elector" saying that they would vote for Obama, but they have not actually done anything yet. A federal court might not want to assume that these state public servants will act illegally, and in any event it should not intervene in a state matter.
Of particular pertinence is Berg v. Obama, one of the many cases brought against Obama pursuant to the Natural Born Citizen clause of the Constitution:
Berg lacks standing to bring this suit because he has suffered no injury particularized to him. A prerequisite of standing is that the litigant has suffered or will suffer an injury in fact that is caused by the complained-of conduct by a defendant and that can be redressed by the court. ... "[W]hen the asserted harm is a ‘generalized grievance' shared in substantially equal measure by all or a large class of citizens, that harm alone does not warrant exercise of jurisdiction." Warth v. Seldin, 422 U.S. 490, 499 (1975)
None of the theories asserted by "birther" plaintiffs got anywhere, and not just because the theories themselves lacked merit. There were many of these suits, and they provide precedent for the proposition that the remedy for any violation of presidential-qualification requirements, including the two-term limit, lies with Congress during the counting of the electoral votes.
Lawsuits would certainly be filed in state courts as well, and those courts might take a more expansive view of standing than does the U.S. Supreme Court. But the birther lawsuits got nowhere in state courts, either. States might also split on a red/blue basis, but red states wouldn't vote for Obama anyway, so state suits might have little impact on the election outcome.
So, say Obama stays on the state ballots and gets enough electoral votes to win. The result would be presented to the Congress in early January 2017, the new Congress, just elected, so the politics would depend on the results of the 2016 congressional races.
Republicans might think they could take comfort in the constitutional provision (in the Twelfth Amendment) that the failure of any presidential candidate to procure a majority of electoral votes sends the election to the House — the argument being that electors who voted for Obama don't count. But this is fools' gold, because the Electoral Count Act governs the procedures for processing the electoral votes, including provisions for challenges.
The decision is heavily tilted in favor of any slate certified by a state. Unless both houses of Congress reject an electoral vote, it is accepted. Were the Democrats to win even one house of Congress, or suborn enough Republicans to accept the Obama electors as legitimate, Congress would certify his victory.
The lawsuits would then reach blizzard proportions. One can imagine, for example, not just suits against the vote certification but also actions to prevent the Chief Justice from administering the Oath of Office.
We would be back to the issues of standing and justiciability, only at this point the people's representatives in Congress would have spoken. So the argument for Obama would be that enforcement of the 22nd Amendment is up to Congress, and if it declines to act then a court should not interfere. If the earlier suits were too early, the new ones might be too late.
Without such limitations [of standing and justiciability] — closely related to Art. III concerns but essentially matters of judicial self-governance — the courts would be called upon to decide abstract questions of wide public significance even though other governmental institutions may be more competent to address the questions and even though judicial intervention may be unnecessary to protect individual rights.
Of course, the application of the doctrines of restraint will not happen without a fight, and Republican lawyers will develop strong arguments as to why they should not apply. My arguments here are tilted toward the Obama side to serve as a wake-up call.
However, the doctrines are so muddled intellectually and corrupted by political bias as to be almost impenetrable to rational analysis, which means the result would reflect judicial politics. Here, again, the prognosis is not good.
It is certain that the four progressives on the Supreme Court would vote against overturning the election. As Andrew McCarthy recently advised: "Let's Drop the Charade: The Supreme Court Is a Political Branch, Not a Judicial One." They would possibly pick up conservative votes as well, because the conservatives are deferential to the idea that the majority rules, and that courts should not preempt the political process. One can easily imagine several justices besides the progressives citing Warth as binding precedent.
So, if the legal barriers are flimsy, could a third term actually happen?
Well, if Obama had it in mind, he would start by disclaiming any such intent and expressing his thirst for retirement. In 1940, Roosevelt did not seek a third-term nomination; he denied interest while undercutting other possible nominees and relying on an orchestrated draft that left him looking innocent of the charge of overwhelming ambition.
Given Obama's Africa speech, check off step No. 1.
The second step would be for Obama to avoid choosing and supporting a successor, and to sabotage anyone likely to get the Democratic nomination. The first of these boxes has clearly been checked, and bad information about Hillary does seem to keep leaking out.
Step three, of course, and absolutely indispensable, would be a crisis, as Roosevelt in 1940 had the looming war. In a Rasmussen survey, 30 percent of likely voters said they would endorse a third term, which is a good start, but a crisis would be necessary to push that to a majority. The list of possibilities is extensive: finance; depression; inflation; Iran; China; Russia; cyber-attack; threats to the electric grid; tragic income inequality.
Perhaps even the lack of seriousness of his opponents could be made into a crisis. Obama has said, "In 18 months I'm turning over the keys; I want to make sure I'm turning over the keys to somebody who is serious about the serious problems the country faces and the world faces, and that requires on both sides, Democrat and Republican, a sense of seriousness and decorum and honesty." The Republican race has a number of highly competent candidates, but the bylined Democrats, aka the MSM, portrays it as a clown car, full of people who cannot possibly be entrusted with the nation.
For a third term to be a real possibility also requires the assumption that the Democrats would go along and nominate Obama again, but this is a no-brainer, if the other conditions are met. The Democratic party's lack of willingness to confront Obama over breaches of legal obligations is constant, and if victory at the polls looks improbable in 2016, they would ignore the Constitution rather than turn the nation over to the Evil Republicans.
Obama also said in Africa, "Sometimes you'll hear leaders say, well, I'm the only person who can hold this nation together. If that's true, then that leader has failed to truly build their nation."
The statement is droll, considering that Obama has destroyed the Democratic party's farm teams, but it is easy for him to wriggle out of. He can simply confess that he failed to groom a successor (sigh, "my bad"), but the situation is what it is, and so he must stay. Then he could cite his speech as evidence that he really, really wanted to quit, but just could not bring himself to do that to the nation.
Of course, all of this is preposterous, isn't it? Could never happen.
Ask again next summer.
James V. DeLong is the author of Ending ‘Big SIS' (The Special Interest State) & Renewing the American Republic.