Presidential Accountability and the Twenty-Second Amendment: A Little Math

David Super

     Note:  Having just spent the morning writing a short essay about the Twenty-Second Amendment, I was dismayed to find that Jeffrey Gordon had just posted a much more thoughtful piece on the same subject.  Accordingly, I have cut away the parts of mine that seem duplicative of his.  But I did approach the problem quantitatively and so am posting a stripped down version to make that analysis available. 

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     In Slaughter v. FTC, the Supreme Court relied on extensive Originalist arguments to strike down most congressional limitations on the President’s power to remove executive officials.  The Court declared that “Subordinates who exercise the President’s power are subject to removal by him. Then, and only then, can they remain accountable to the President, and the President to the people.”  In Seila Law LLC v. Consumer Financial Protection Bureau, the Court declared that the growth of federal powers “only sharpens our duty to ensure that the Executive Branch is overseen by a President accountable to the people.”  On numerous other occasions, the Court has insisted on deferring to the President specifically because he is politically accountable.  But is he?

     That was a reasonable, if imperfect, approximation of the President’s position for much of this country’s history.  Between the Civil War and the end of Harry S. Truman’s presidency, the current president had at least some plausible chance of facing the voters again ninety percent of the time.  In other words, only about ten percent of the time were we governed by a president who had announced that they would not run again or who had been defeated for renomination or re-election.  Just once during this period did a president serve for more than a year after having been eliminated from further electoral accountability.  (In this calculation, I am ignoring pledges not to run again made prior to the president’s initial election as those pledges were sometimes reconsidered.) 

     The Twenty-Second Amendment, limiting presidents to two terms, changed all that.  Beginning with Dwight D. Eisenhower, the first president subject to the Amendment, and running through the expected end of President Trump’s second term, the sitting president has been a lame duck 37% of the time.  Presidents Eisenhower, Nixon, Reagan, Clinton, George W. Bush, and Obama became constitutionally incapable of accountability to the voters the moment they were re-elected, slightly less than half-way through their presidencies.  President Trump resumed office in 2025 as a lame duck. 

     Whatever one thinks about Originalism in other settings, it is clearly inappropriate where the underlying document has changed in a clearly relevant way.  Little practical insight can be had by considering the original public meaning of the Eighteenth Amendment (Prohibition) or the federal courts’ jurisdiction over cases between “between a State and Citizens of another State” because those provisions have been overridden.  So, too, doctrines of sweeping deference to the President based on the Framers’ confidence in his electoral accountability should be revised to account for the more than one-third of our civic life – including the next two-and-a-half years – when that is no longer true. 

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