theConstitutional.org

(Prof. Brian Kalt, guest-blogging)

The last chapter that I will preview from my new book, Constitutional Cliffhangers, is Chapter 6. It deals with a potential loophole in the Twenty-Second Amendment’s term limits for presidents. It’s also the only chapter that cites a commenter from the Volokh Conspiracy.

The term-limit loophole has been noted and discussed a fair amount, dating back to the first president to be constrained by the Twenty-Second Amendment (Eisenhower). There have been robust discussions in newspapers, law-review articles, and blogs. Smart people on both sides have gotten surprisingly vehement about the question.

No president has attempted to exploit the loophole, and President Clinton spoke against it. Still, in the long term, the fates of term-limit provisions around the world suggest that we should not be too complacent over the long term.

Here is the chapter’s opening:

President Frederick is three years into his second term. He remains so popular that some pundits have floated the idea of repealing the Twenty-Second Amendment and letting him run for a third term. Frederick laughs off such talk, and a national opinion poll shows that only 12 percent of voters support repeal. Still, Frederick casts a large shadow; on the eve of primary season, his Democrats have no clear front-runner for the nomination to replace him.

Then disaster strikes: a treacherous terrorist attack kills tens of thousands of Americans. The country rallies behind President Frederick as he leads a strong offensive against the terrorists and their sponsors. His approval rating shoots into the nineties. While the country is badly rattled by the attack, people feel safer with Frederick in charge.

Frederick feels pretty good being in charge too. Now, when the Twenty-Second Amendment comes up, he sounds increasingly coy. Support for repeal rises to almost 50 percent in the polls. But Republicans — and several prominent Democrats — argue against amending the Constitution in the heat of the moment, so the congressional and state supermajorities needed for an amendment are well out of reach.

At this point, a startling idea gains traction among Democrats: President Frederick can run for vice president. Many people would find Frederick’s mere presence reassuring. Others envision a figurehead president who would leave VP Frederick in charge or perhaps even resign and let Frederick become president again. This last maneuver would be constitutional, they say, because the Twenty-Second Amendment only says that no one “shall be elected to the office of the President more than twice,” and Frederick would not be “elected” president. The amendment says nothing about a two-term president “succeeding” to the presidency, or “serving” as president. Buoyed by Frederick’s stratospheric popularity and the atmosphere of crisis, the plan steadily gains support, and Frederick’s anointed surrogate, Representative Stevens, sweeps the Democratic presidential primaries.

The Republicans object forcefully. As one senator puts it on a Sunday morning talk show, “We’re all grateful to President Frederick for his leadership during these difficult months, but everybody knows we have a two-term limit. We shouldn’t let the Constitution be a casualty of this war.” Frederick is officially nominated for vice president at the Democratic convention, and the litigation floodgates open.

Later on in the chapter, we get this exchange on a cable news show:

Professor Scott: Look, I can’t tell you why the drafters of the Twenty-Second Amendment limited it this way. But they did. When they wrote the first draft of the amendment, they said two-termers couldn’t “hold the office.” But then, they changed it from “hold the office” to “be elected.” You see? They initially banned what President Frederick is trying to do, but then they changed the language until it didn’t say that anymore. They said “elected” only, they said it on purpose, and that’s that.

Professor McCulloch: The Twenty-Second Amendment was written to keep two-termers out. The Twelfth Amendment says two-termers can’t run for vice president either. Frederick is a two-termer. It’s not that complicated, and people know it. Professor Scott likes talking about the “plain meaning of the text” here, but that just means he wants to ignore the context and ignore the clear purpose of the amendment and ignore the way people have understood this language for generations. If the Twenty-Second Amendment is this easy to avoid, then it means nothing, and judges don’t like to interpret the Constitution as an exercise in futility. I think Professor Scott and I agree on one thing, though: if the courts don’t prevent this, the people will still get to decide. Lots of voters who would otherwise vote for President Frederick are going to vote against him, because they recognize how inappropriate this is.

I don’t want to get into the legal arguments about the Twelfth and Twenty-Second Amendments here, because so many people have written so much about them already, including on this blog. Briefly, the question for the Twenty-Second Amendment is whether it bars two-termers only from being elected again (as the text says) or from serving anymore at all (as the spirit and the popular understanding of the amendment suggest). For the Twelfth Amendment, the issue is whether “eligible” (in the phrase “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States”) means eligible to be elected or eligible to serve at all.

Instead of wading into these questions here (I don’t want to just reproduce my whole book, after all), I want to focus on the cautionary tale this represents about constitutional drafting.

An earlier draft of the Twenty-Second Amendment would have avoided this problem, just as Professor McCulloch suggests in the last block quote above. That language was changed in a bold move to “simplify” the language down to 13 words, thus opening the loophole. This was foolish. First of all, the language quickly got re-complicated anyway back up to 121 words (though not in a way that noticed, let alone closed, the loophole). Second, it is more important that technical “nuts and bolts” constitutional language be precise than that it be elegant.

The other side of the argument is that the risks are too low to worry about. And it is truly hard to imagine any president trying to pull this trick; the president would need to have enough support to win even after subtracting out all the would-be supporters who (1) think he is constitutionally ineligible to serve or (2) think that term limits should be observed even if they are not technically required. As Dean Acheson put it back in the Eisenhower days, a two-term president running for vice president would be “more unlikely than unconstitutional.”

But low risk is no reason to let our guards down. What is gained by having a more elegantly phrased amendment that leaves even the slightest potential loophole open? Whatever you think of the possibility of this cliffhanger occurring, it’s hard to argue that we wouldn’t be better off with an amendment that was a few words longer but covered all the bases.

I have some ideas about ways to improve the constitutional drafting process, which I will discuss tomorrow. For now, the point is that we can and should do a better job when dealing with issues like these. For every expert adamant that two-termers cannot serve again (my favorite line from one professor, responding to his opponent: “The contention is so preposterous, and so obviously wrong, that one wonders how a nationally renowned law professor at one of the top law schools in the nation could make such a mistake. . . . [He] quite obviously knows little about the Constitution.”), there is an expert adamant that they can. While shoddy drafting makes it easier for people like me to have their fun writing about hypothetical craziness, it would be better for everyone to keep doubt and uncertainty about presidential power at a minimum

With all due respect to Dean Acheson (and to the commenters here at VC who will say that this chapter is stupid because it simply could never happen), I will just close with the words I use to end Chapter 6: “Constitutional disputes do not arise in a vacuum, and our democracy has had its weak moments. It would be foolish to assume that the United States will never have a president who is more popular than the Constitution — or, more to the point, more popular than one disputable interpretation of it.”

(Orin Kerr)

In United States v. Jones, Justice Scalia wrote a majority opinion holding that when the police trespass onto property enumerated in the text of the Fourth Amendment with the purpose of obtaining information, they commit a search. In Bond v. United States, however, Justice Scalia dissented — more specifically, he joined Justice Breyer’s dissent — when the Court held that it is a Fourth Amendment search for the police to grab a suspect’s duffel bag and squeeze it with intent to see what it contains inside. According to Justices Breyer and Scalia, this was not a Fourth Amendment search.

Does anyone have ideas for how to reconcile Scalia’s votes in Bond and Jones? One answer is that in Jones, Justice Scalia is engaging in equilibrium-adjustment — he’s trying to maintain Fourth Amendment protection in light of technological change, so he favors broader Fourth Amendment protection to counter new powers by the Government. Equilibrium-adjustment isn’t necessary in Bond, which just involved the old-fashioned facts of grabbing a bag. But are there other ways to reconcile those two votes? Is manipulating a bag not a common law trespass? Does a bag not count as “effects”? Does Justice Scalia see Bond as only asking about the Katz test, not whether the conduct is a search generally?

UPDATE: Some commenters contend that Bond obviously only involved the Katz test, not the broader question of what was a Fourth Amendment search. But here’s the Question Presented in Bond:

Whether a search occurs when a law enforcement officer manipulates a bus passenger’s personal carry-on luggage to determine its contents.

It’s true that the briefing in Bond talks a lot about the Katz test; until Monday, no one was aware that the Katz test was only one among two or more tests for what counts as a search. But a lot of the briefing in Bond talks generally about whether a search occurred, not just about a reasonable expectation of privacy.

Commentary on the Court’s decision in the GPS tracking case, United States v. Jones, continues for a third day. The editorial boards of the New York Times, the Washington Post, the Philadelphia Inquirer, and the Baltimore Sun all weigh in, while in the blogosphere Orin Kerr (at the Volokh Conspiracy), Jacob Sullum (of Reason), and Paul Larkin (at the Heritage Foundation’s Foundry Blog) also have coverage. Conor covered additional news on the decision yesterday.  Discussing the decision at Scientific America, John Villasenor criticizes the Court’s opinion as resting “on technology assumptions that are rapidly becoming irrelevant,” while at Wired’s Threat Level blog, David Kravets discusses whether the government needs a warrant to monitor someone in real time via his mobile phone.

Briefly:

• At the New York Times Opinionator blog, Linda Greenhouse compares the Court’s recent decision in Maples v. Thomas, giving a death row inmate a second chance to seek relief after his lawyers’ actions deprived him of his original chance to do so, with the Court’s 2007 decision in Bowles v. Russell, denying a second chance to a convicted murderer who missed a deadline due to a federal judge’s error.
• Discussing the fall-out from the Court’s decision in Citizens United v. Federal Election Commission at Politico, Jeffrey Rosen argues that “as long as the Supreme Court continues to insert itself into the most controversial questions of U.S. politics, it needs justices who are more politically deft in predicting how decisions may be received.”
•  At Slate, Dahlia Lithwick discusses what the Court “can learn from Gabby Giffords and Jeff Flake.”
• At the ABA, Rory Little has case summaries of the recent decisions in Jones, Reynolds v. United States, and Ryburn v. Huff.

In association with Bloomberg Law

If Court-watchers are looking for some clue on the constitutional issues around the federal Sex Offender Registration and Notification Act (SORNA), they’ll have to wait.  The Court’s ruling this week on SORNA marks the third time in as many years that the Act has reached the Court.  Like the earlier cases, this one, Reynolds v. United States, doesn’t touch the constitutional issues brewing in the lower courts.  In truth, Reynolds didn’t present any of the larger constitutional issues, and the Court assiduously avoided the one constitutional issue it might have considered.  In the end, Reynolds is, and maybe always was, just a narrow case about statutory construction in a rather obscure corner of the SORNA, coming to the Court merely to resolve a deep circuit split.

That obscure corner deals with the Act’s application to sex offenders who were convicted before the Act’s adoption, the so-called “pre-Act” offenders.  The Act says that the Attorney General “shall have the authority to specify the applicability of the [registration] requirements” to pre-Act offenders – that is, to say whether pre-Act offenders had to register just like post-Act offenders.  Petitioner Billy Joe Reynolds, a pre-Act offender, argued that the Act didn’t apply to him by its own force, and that the phrase “to specify the applicability of” meant that the Act’s registration requirements didn’t kick in until the Attorney General actually acted.  (The Attorney General, in fact, did act, by enacting an interim rule that applied the registration requirements to pre-Act offenders, including Reynolds.  But Reynolds contested the validity of this interim rule under the Administrative Procedure Act and the nondelegation doctrine.  The Court didn’t touch these issues.)  The government, on the other hand, argued that the Act applied to pre-Act offenders by its own force, and that the phrase meant that the Attorney General could only exempt pre-Act offenders from the registration requirements.  In short, the parties disagreed about whether the phrase “to specify the applicability of” operated against a baseline that required pre-Act offenders to register, or one that didn’t.

The Court agreed with Reynolds.  In an opinion by Justice Breyer that was joined by all of the Justices except Justices Scalia and Ginsburg, the Court held that the Act did not apply by its own force to those convicted before the Act was adopted, and that only the Attorney General’s regulations “specify[ing] the applicability” would trigger registration requirements for pre-Act offenders.  Justice Breyer explained that a natural reading of four statements from the Act support this conclusion.  Statement One says that “[a] sex offender shall register, and keep the registration current.”  Statement Two says that an offender must register before finishing his “sentence of imprisonment.”  Statement Three requires a sex offender to update his registration within three business days of any change of “name, residence, employment, or student status.”  Statement Four says that “[t]he Attorney General shall have the authority to specify the applicability of the requirements . . . to sex offenders convicted before the enactment of” the Act.

Justice Breyer wrote that Statement Four (dealing with a sub-set of all sex offenders, the pre-Act offenders) naturally modifies Statement One (dealing with all sex offenders) and therefore should control the Act’s application to that population.  Moreover, Statement Four more naturally grants authority to the Attorney General to apply the Act – that is, to specify its applicability, not its nonapplicability.  Justice Breyer illustrated his point by imagining what would happen if the Major League Baseball Players Association and the team owners were to agree that the Commissioner of Baseball “shall have the authority to specify the applicability” of the more stringent minor league drug testing policy to the major leagues; he concluded that “the minor league policy would not apply unless and until the Commissioner so specified.”

Finally, Justice Breyer said that the majority’s reading comports with possible congressional concerns about the Act’s application to pre-Act offenders and allows the Attorney General to work out some of the indeterminacies in the Act (or “fill[] potential lacunae,” like whether and how pre-Act offenders who have been released from prison must register) so as to diminish uncertainty in the Act’s application to pre-Act offenders.  “A ruling from the Attorney General . . . could diminish or eliminate [uncertainties in the Act], thereby helping to eliminate the very kind of vagueness and uncertainty that criminal law must seek to avoid.”

If Justice Breyer’s principal, four-part textual approach is straightforward, even syllogistic and rote, his use of congressional purposes is much more interesting.  Here, he augments his textual analysis with consideration of possible congressional purposes – not even just actual congressional purposes – based on his reading of the Act and its history.  His analysis recalls the highly deferential approach the Court uses in some areas of constitutional law – for example, the rational basis review test under Williamson v. Lee Optical, which allows the Court to consider any conceivable legitimate government end to uphold a legislative act and thus to say (as Justice Breyer did here), “Congress might have intended” a particular result.  While the approach is appropriately deferential to a co-equal branch in this way, it is deferential to that branch, the Act, and its purposes as seen through the majority’s eyes.  And as Justice Scalia’s dissent reminds us, the majority’s way is not the only way to read the Act or to understand congressional purposes.  If this case is at least in part about the Court’s deference to Congress, deference here, it seems, is in the eye of the beholder.

The majority addressed neither the Attorney General’s authority to enact interim regulations or the thorny constitutional issue whether Congress can delegate the authority to activate the Act’s registration requirements.  The former issue wasn’t presented, because the Third Circuit did not address it.  (Instead, that court held that the Act requires pre-Act offenders to register by its own force, making any regulations superfluous.  The Court remanded the case for consideration of the validity of the Attorney General’s interim rule.)  But the latter issue might have informed the Court’s analysis of the Act’s language.  Here’s why: the Court traditionally interprets statutory language to avoid constitutional problems, but the Act’s delegation to the Attorney General, as interpreted by the majority, at least arguably runs afoul of the nondelegation principle (that Congress can’t delegate standardless authority to executive officials).  The omission tells us that the Court wasn’t too concerned about the constitutionality of this broad congressional delegation to the Attorney General to activate this portion of the Act – at least yet.  (This issue may come up on remand, when the parties argue whether the Attorney General’s interim rule was valid.)

Justice Scalia, joined by Justice Ginsburg in dissent, argued that the Act required registration of pre-Act offenders by its own force, and that the delegation to the Attorney General only allowed the Attorney General to exempt pre-Act offenders from registration (or, presumably, to otherwise modify down the Act’s registration requirements).  Justice Scalia claimed that this was the more natural reading of the Act, with a focus on Justice Breyer’s Statement One, requiring all sex offenders to register.  Against that baseline, Justice Scalia contended that Justice Breyer’s baseball illustration was inapt: major league does not already require the more stringent drug testing policy (as the Act, under Statement One, already requires registration), and so the Commissioner’s power, unlike the Attorney General’s power, is necessarily the power to activate, rather than to exempt.  (Justice Scalia also dropped a note to say that he disagreed with the majority’s reliance on legislative history.  He said it’s not necessary, because the text is clear.)  Finally, Justices Scalia and Ginsburg would have counted the nondelegation principle against a power to activate (for reasons described above); Justice Scalia wrote that a power to exempt avoids the constitutional problem and, in any event, is much more consistent with traditional prosecutorial discretion.

Reynolds won this round, but the case is not over.  The ruling sends the case back for consideration whether the Attorney General’s interim rule was valid as against his challenge under the Administrative Procedure Act and the nondelegation doctrine.  Reynolds needs to win that argument, too, in order to ultimately prevail.

In association with Bloomberg Law

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