Should We Do Away with Presidential Term Limits?

That’s the question that I put to Richard Epstein and John Yoo on the episode of “Law Talk” that we just finished recording. The debate may surprise you. The two professors are worlds apart on this issue.

The discussion was driven by a bill filed last week by veteran New York Congressman Jose Serrano (a Democrat) to repeal the 22nd Amendment, limiting presidents to two terms. To Serrano’s credit, his motives seem to be institutional rather than partisan. He’s filed this legislation in the midst of both Republican and Democratic administrations. And you might be surprised to know which other members of Congress have voiced their support for the idea in the past — they include Harry Reid, Mitch McConnell, and Steny Hoyer.

You’ll have to listen to the podcast for my proposed solution, which involves taking a page out of a former president’s playbook.

So how about it? Do term limits leave the president dangerously unaccountable in his second term? Do they safeguard us against a greater consolidation of power in the executive? Hash it out in the comments.

  1. DocJay

    I think we should take every career politician and throw them in a meat grinder.  90 percent or more are crooks far more concerned with themselves than our well being.  Career politicians are as much to blame for our ills as our decaying morality.  Term limits for everyone, possibly one six year term for all senators and the president.  

  2. Paul A. Rahe
    C

    It all depends on whether you think that we need a tyrant. If so, chuck the term limits, and the next time we get the like of the current President he will try to become President for Life.

    If, on the other hand, you prefer liberty, then we need to have term limits for Presidents.

    I am inclined to think that we should have term limits for the House of Representatives (say, three terms) but not for the Senate. The Founders expected lots of turnover in the latter and thought it good that there not be an entrenched political class. They favored longer terms in the Senate because they thought that a bit of continuity would contribute to stabilizing the polity.

  3. Pseudodionysius

    An elected king. How quaint. Perhaps propose a trade: no term limits for President if Supreme Court Justices have to be elected.

    That fight should be over just before Armageddon.

  4. Dave Carter
    C

    I’m with DocJay, above.  I’m leaning heavily toward term limits for everyone, including Supreme Court Justices.  

    To your question, “Do term limits leave the president dangerously unaccountable in his second term?” …to some extent it can aggravate the issue, though Nixon was held accountable in his second term and Clinton was impeached in his.  There are constitutional means to hold the President accountable.  The question is whether there are enough people in the co-equal branches who are willing to do so.  Right now, the answer is that there are not, and these linguini-spined politicians need to be shown the door. 

    Before I’d lift Presidential term limits, I’d impose some sort of civic literacy requirement on voters.  

  5. Crow

    For me, Troy, the answer is somewhat complicated. I’ll lay it out briefly.

    If you had asked me this question prior to founding a nameless republic, I might have answered “yes”, in the sense that I would not have legislated term limits.

    I might have cited to you that popular governments which are long to endure depend upon certain virtues, and that I had anticipated men of a certain kind of virtue (those who possessed an internal governor, not merely an external one) holding office. I might have constructed an electoral system that prejudiced such men being elected, and made no compromises. I might have thought that popular tides of opinion farther down were themselves a sufficient check. Moreover, I might have “legislated” broadly a program of education for the governing class that wasn’t, shall we say, aimless and self-empowering.

    But under our present conditions, which are far from optimal, I must make concessions not only to the perception of the people, but to the corruption among elites; I legislate with it in mind. Therefore, it would be a very dangerous time indeed to remove term limits; Washington–a man of great virtue–set the proper example.

  6. Crow
    Paul A. Rahe: I am inclined to think that we should have term limits for the House of Representatives (say, three terms) but not for the Senate. The Founders expected lots of turnover in the latter and thought it good that there not be an entrenched political class. They favored longer terms in the Senate because they thought that a bit of continuity would contribute to stabilizing the polity.

    Prof. Rahe and I agree upon this principle because, I suspect, we both see the value of a mixed regime.

    Although, for my part, I would repeal the direct election of Senators. But that is a distant and far away battle, and not the first point on the agenda.

  7. DrewInWisconsin
    Dave Carter: There are constitutional means to hold the President accountable.  The question is whether there are enough people in the co-equal branches who are willing to do so. 

    Right. What I was thinking was that if we had a Congress that exercised its constitutional powers (and kept strictly to those) and a President that didn’t try to constantly circumvent the legislative branch with his own power-grabs, perhaps term limits wouldn’t be necessary.

    With the batch of crooks we have in Washington today (cf DocJay) I frequently conclude that no term limit is too short for these imperious monsters.

  8. PJ

    No.  Even Reagan should not have kept going.  I can’t think of any two-termer who makes me think, gee, I wish he could have been president longer.

    And the advantages of incumbency are just too great.  We need to have a choice between two new candidates at least every eight years.

  9. EThompson

    No. The presidency of FDR provides a sound argument for enforcing term limits. Even though he died early in his fourth term, he was able to wreak irrevocable damage in three.

  10. Paul A. Rahe
    C
    Crow’s Nest

    Paul A. Rahe: I am inclined to think that we should have term limits for the House of Representatives (say, three terms) but not for the Senate. The Founders expected lots of turnover in the latter and thought it good that there not be an entrenched political class. They favored longer terms in the Senate because they thought that a bit of continuity would contribute to stabilizing the polity.

    Prof. Rahe and I agree upon this principle because, I suspect, we both see the value of a mixed regime.

    Although, for my part, I would repeal the direct election of Senators. But that is a distant and far away battle, and not the first point on the agenda. · 9 minutes ago

    Me, too. Repeal the 17th amendment.

  11. Michael Brehm

    I’d emphatically say “No” at this point in time. However, feel free to ask  again in four years or so…

  12. raycon and lindacon

    As noted above, the issue of term limits has far more to do with our present times than does the hypothetical constitutional republic some would speak to. 

    Demolish the present day travesty which purports to be a constitutionally limited republic of sovereign states, and replace it with the Constitution we began with, and the issue could be addressed with reason.  Until then, we are speaking into a vacuum.

  13. Britanicus
    Dave Carter:

    Before I’d lift Presidential term limits, I’d impose some sort of civic literacy requirement on voters.   · 22 minutes ago

    That would probably be the most effective (and completely unrealistic) way to cure our country’s woes. Let’s face it, the vast majority of the country simply isn’t fit to vote. For example: the average 18 year old (dear Lord, I voted for Kerry! when I was 18), anyone who doesn’t know enough about our country to be able to pass a citizenship test, and anyone who watches reality television.

    Crow’s Nest: For me, Troy, the answer is somewhat complicated…..

    This was a wonderful paragraph. Very, very well said.

    P.S. please don’t revoke my Ricochet membership for voting for Kerry in 2004! I was young, stupid, and in the hospital recovering from a car accident on pain killers (up yours, Bloomberg!). If it helps any, when my father gave me the absentee ballot and saw my vote, he just shook his head and muttered something about “not having a son”.

    I was raised well.

  14. Frank Soto

    Life is a series of trade offs.  Yes there is a downside to the term limit, a president could feel unaccountable in their final term.  But the alternative is worse.  

    The peaceful hand over of power from one regime to the next is the most delicate part of a free society.  I’m with Paul Rahe on this as well.  At some point, an Obama like figure would become president for life.

  15. Raxxalan
    Paul A. Rahe

    Crow’s Nest

    Paul A. Rahe: 

    Prof. Rahe and I agree upon this principle because, I suspect, we both see the value of a mixed regime.

    Although, for my part, I would repeal the direct election of Senators. But that is a distant and far away battle, and not the first point on the agenda. · 9 minutes ago

    Me, too. Repeal the 17th amendment. · 1 minute ago

    After watching the events in Illinois with Obama’s seat I have to say I gained a new respect for the reasoning behind the 17th amendment.  It  was a fundamentally corrupt practice in parts of the country and would be so today.  I think that a better reform would to be dividing it so that one senator is elected and one is appointed.   This would balance out the power between entrenched political machines and the people of the state who might have other views.  Keep in mind Rubio, Paul, Cruz, and Johnson would not be serving US senators if the 17th amendment were not in place. 

  16. MSJL

    I would also support term limits for all elected offices and the Supreme Court.  The current system arrangement with regard to the Congress and the Supremes date to an age when the life expectancy was 50-ish and there was a steady rotation of office holders.

    Now, office holders get elected and stick around for generations.  This is supposed to lead to a more experienced governing class, but I would argue that we have the most experienced governing class in our history and we are wretchedly governed

    Many of the leadership are little more than walking fossils who keep returning to the same ideas that they have had since the middle of the 20th Century.  Add in the institutional bias to granting leadership positions based on seniority, and we have the most stultifying Congressional leadership imaginable (see e.g., John Dingell – 58 years in a district that has only been representated by father and son since it was created in the 1930s; Sens. Inouye (53 years), Byrd (57 years), Kennedy (47 years) had to be carried out feet first; Fourtney Pete Stark (40 years) doesn’t even bother to own a residence in his own district, etc).  Contra James Polk.

  17. Crow
    Britanicus:

    Crow’s Nest: For me, Troy, the answer is somewhat complicated…..

    This was a wonderful paragraph. Very, very well said.

    P.S. please don’t revoke my Ricochet membership for voting for Kerry in 2004! I was young, stupid, and in the hospital recovering from a car accident on pain killers (up yours, Bloomberg!).

    Appreciate your sentiments.

    For my part, I think I’ve been rooting for Republicans since before I was born in one sense, and I voted (passionately) in the opposite way in the election you cited. I don’t disown you, however, nor were it in my power would I revoke you–I’ve had enough experience of the world, and seen enough how such things come to be.

    I am far too conscious that well beyond Kerry v. Bush there were Trotskyites who became ardent conservatives and neocons: I think our door is open to every man who is self-reflective and self-critical, and is willing to pick up a book more than 200 years old.

  18. PracticalMary

    Presidential term limits while disruptive in foreign affairs also keeps them guessing. They never know who will be next (either), and limits liaisons.

    This article only confirms my belief that the Founders forgot to add that lawyers shouldn’t be allowed in Congress (themselves excluded as in citizenship)- conflict of interest among other things…

  19. Nick Stuart

    In addition to the prudential reasons for term limits already put forward, there is the issue of capacity to serve.

    I don’t have the specifics worked out, but all public office should be term-limited, this especially includes “appointed for life” judges.

    I turn 62 this year, God willing, and it is very clear to me that I’m not capable of operating at the same level as I was in my younger days. Extrapolating my personal experience out to the age of say 80, and adding my personal direct observations of elderly people, and what I see in the media, I think it justifiable to say that somewhere between the age of 70 and 80 it is really time for public officials to hang it up.

    The examples of individuals who clearly were in office long beyond their capacity to adequately discharge the duties of that office are long, and bipartisan. A very incomplete list of examples:  Rhenquist, Blackmun, Marshall, Kennedy, Thurmond, Byrd, even Henry Hyde.

    To name just a few current ones:  Orrin Hatch seems to have lost a step; Frank Lautenberg has no business running for re-election at the age of 89.

    (cont’d)

  20. Nick Stuart

    While I agree that constituents have the right to elect whomever they want, the power of incumbency is such that it is way too easy for people to keep running forever; and way too difficult for a challenger to unseat them.

    I can hear the shrieks of “ageism,” but there needs to be a maximum age beyond which running for election is prohibited, and at which appointed officials must step down, 75 perhaps.

    Those individuals still capable of making a contribution could attach to a think tank, serve on commissions, or join the punditocracy. But they need to clear out while they’re still coherent.