Trump v. Slaughter and the Twenty-Second Amendment

Guest Blogger

Jeffrey N. Gordon 

            Supreme Court decisions of the recent term threaten to undermine the regulatory system that has supported US economic growth and prosperity for nearly 100 years.  Many have objected to the Court’s failure to give weight to the risk of such costly destabilization.  The Court’s response, presumably, is “it’s the Constitution, not us.” The flaw is that the Court has ignored a critical part of the Constitution, the Twenty-Second Amendment, which enacts a 20^th century model of presidential empowerment that calls for sustaining the “for cause” removal protection at issue in in Trump v. Slaughter and Trump vs. Cook.

            In a series of cases that culminated in this term’s decisions, the Supreme Court has transposed the Framers’ desire in 1789 to create an “energetic” president into a decision rule that Congressional fashioning of regulatory agencies headed by commissioners with “for cause” protection was an impermissible encroachment on “executive power.”   In a prior decision (2020) that overturned the structure of the Consumer Financial Protection Bureau, Seila Law v. CFPB, the Chief Justice explained the resulting constitutional structure this way: “divide power everywhere except for the Presidency, and render the President directly accountable to the people through regular elections.”

            This intellectual scaffolding, built around the unique electoral accountability of the president, collapses in the face of the Twenty Second Amendment, approved in 1947, ratified in 1951, which not only imposes term limits but also embraces prior efforts to limit presidential power.    

            The most immediate point of failure is the “lame duck” problem.  After adoption of the Twenty-Second Amendment, electoral accountability cannot, as a mechanical matter, restrain a second term president. A direct consequence of the Twenty-Second Amendment is to change the Constitutional framework.

            But the Twenty-Second Amendment’s rebuke of the current Court goes deeper.   The Amendment was enacted because the Framers of 1947 explicitly rejected  electoral accountability as a sufficient check on presidential power. Working in the decade following the creation of the New Deal, these Framers saw a president who had become vastly powerful.  They believed that the president could use these powers for patronage and favor-granting to engineer renomination and pave the way to his reelection.  Thus the sharp limit on re-election came from  their conviction that “electoral accountability” was an insufficient check.   Presidential authority needed to be subject to a hard stop even though depriving the People of the right to choose to re-elect a president repeatedly counted against democracy.

            The Framers of the Twenty-Second Amendment thus implicitly and explicitly embraced the limitations on presidential power in the set-up of the “independent” agencies that proliferated in the New Deal.  In the living memory of these Framers was the struggle over Congressional effort to provide “for cause” protection for agency commissioners, validated in Humphrey’s Executor v. US, in May 1935.  This case was understood to be pivotal, since the Senate’s insistence on such protection had been a major barrier to legislative conferral of extensive new powers on the Federal Reserve Board.  The Banking Act of 1935 was passed in August, three months later.

            As put by one of the principal architects of the Twenty-Second Amendment, Rep. Earl C. Michener, chairman of the House Judiciary Committee, in the speech that introduced the operative resolution in the House: “Over a period of 12 years a President can secure a firm control over the enormous and powerful machinery of Federal administration, including the so-called independent agencies.”

            In the Supreme Court’s Slaughter world this argument makes no sense, for the president can immediately remove (or credibly threaten to remove) the commissioners of “independent” agencies and thus gain immediate control.  The president need not wait out the commissioners’ terms; the accession to control is immediate upon taking office. 

            The Twenty-Second Amendment embraces a different conception: that presidential power is in part a function of tenure and that by limiting tenure, we constrain presidential power.   The goal of the Twenty Second Amendment is to limit presidential power even as the scope of government expanded.  Its immediate mechanism is term limits but those term limits are meant to gain force through interaction with pre-existing constraints on presidential power, including the protection of “for cause” removal for the commissioners of independent agencies.  Thus a set-up with lengthy staggered terms for commissioners with “for removal” protection is woven into the Twenty Second Amendment’s conception of legitimate limits on presidential power.       

            In light of the Twenty-Second Amendment, there are two distinct routes by which the Court should redress its constitutional mistake.  The first is to accept the rewriting of presidential power embodied in the Amendment, which directly countenances limitations like staggered terms for commissioners protected  by “for cause” removal. 

            The second is simply to acknowledge and address the accountability gap that is an immediate mechanical consequence of the Amendment, in a manner consistent with the goal of ordered liberty.  In other domains, this so-called “final period problem” leads to special governance rights.  For example, in a merger transaction, target shareholders always get a vote because officers and directors will be “term-limited” if the transaction goes forward.  In the setting before the Court, “for cause” protection of agency commissioner seems an appropriate way to protect ordered liberty in light of the change in the Constitutional scheme.  Even though the mechanical electoral accountability problem does not arise in a president’s first term, there needs to be consistent rule, here, “for cause” protection.

            Slaughter relies on a vision of the presidency conjured, speculatively, from 1789. As  enactment of the Twenty-Second Amendment shows, this is not “the end of history” for the Constitutional conception of presidential empowerment. We have a 20^th century conception created in light of a dramatically changed government, not inferred through Constitutional “moment” but enacted by Constitutional amendment.  And this revised conception of presidential empowerment and its limits should bind the US Supreme Court. 

Jeffrey N. Gordon is Richard Paul Richman Professor of Law at Columbia Law School. You can reach him by e-mail at jgordon@law.columbia.edu.