Boston University School of Law
Dean Jeremy Paul is concerned that the presidency has been weakened and that the Twenty-Second Amendment’s limitation on presidential service is at least partly to blame. Dean Paul is clearly correct that once a President reaches the point beyond which re-election is not constitutionally possible, the President is effectively a lame duck. Dean Paul further points out that since 1951 when the amendment limiting Presidents to two terms went into effect, there have been several instances of very poor results in the President’s second term. He attributes the second term problems of some recent Presidents at least partly to term limits. Despite the strength of Dean Paul’s arguments, I am skeptical of Dean Paul’s skepticism concerning presidential term limits. I am skeptical of the claim that the presidency has actually been weakened in recent decades, but even if it has been, there is reason to be skeptical of the claim that term limits have anything to do with any weakening of the presidency. The President’s continued control over the Executive Branch throughout the duration of a second term means that any relative increase in the power of Congress and the federal courts relative to the President is likely to derive from a source other than term limits. Further, there are reasons to be skeptical, even fearful, of a potentially unlimited presidency. The ambition to stay in office might lead incumbent Presidents to take extreme measures to stay in power, especially in a system such as ours with formally separated powers. Finally, if concern over the balance of power within the federal government is legitimate, I speculate that better ways to increase the President’s power relative to the other branches might involve term limits on Members of Congress and reforms to separation of powers doctrine and constitutional provisions aimed at weakening them, rather than increasing presidential power directly.
A Skeptical View of a Skeptical View of Presidential Term Limits,
Boston University School of Law, Public Law Research Paper
Available at: https://scholarship.law.bu.edu/faculty_scholarship/427