Presidential Succession and Amendment 22

What do Chavez of Venezuela, Ortega of Nicaragua, Zelaya ofHonduras, Uribe of Colombia, Morales of Bolivia, Correa of Ecuador, Fujimori of Peru, Mubarak of Egypt, al-Qadafi of Libya and Putin of Russia have in common? They are among the many contemporary presidents, Prime Ministers and Heads of State who either have changed their country's constitutions, or want to do so, to permit them to stay in office longer than is constitutionally permitted now. Fujimori of Peru, of course, failed in his attempt and subsequently was forced out of office on charges of human rights violations and murder. He is now in prison.

Certainly President Barak Obama, in office little more than five months, has never suggested it, but already commentators, and even the traditionally ineffective and fawning White House Press Corps, are asking pointedly whether he, Obama, will join those mentioned above after a proposed amendment to the Constitution has been introduced in Congress by Rep. Jose Serrano (D-NY) to repeal Amendment 22, and at least one website has been created for that purpose (End22.com). The White House Press Secretary was less than emphatic in his denial, but he frequently is less than emphatic when responding to reporter's questions. But let's look at the possibilities.

A president's greatest challenge to legally extending his time in office is the Constitution of The United States and specifically the aforementioned Amendment 22, which limits a president to no more than two terms. Amendment 22 was ratified in 1952 after Franklin Roosevelt was elected to a fourth term. It was George Washington, after all, who declined to run for a third term, expressing his view that two terms is enough and more than that would not serve the country well. All subsequent presidents of the United States followed Washington's prescription - until FDR who used World War II as his excuse to remain in power. His campaign in 1944 featured the slogan, "Don't change horses in the middle of the stream," - the "stream" being WWII. He was popular and we were fighting a war, and the voters agreed. Apparently they feared that a change in the presidency would somehow cause our military to fight less effectively, or perhaps that a new president, Thomas E. Dewey in this case, would not know what to do to win.

Should this or a future president attempt to extend his term, he or she would first have to ask for a new amendment to the Constitution repealing Amendment 22; "ask" because the president has no role in amending the Constitution. That is between the Congress and the State legislatures; an amendment requires approval by 3/4 of the States after being proposed by 2/3 of both Houses of the Congress. Those are high hurdles for an ambitious president to overcome. It's not likely that the either political party will ever hold 290 reliable votes in the House along with 66 reliable votes in the Senate. As for the States , the Legislatures of 38 States would be needed for ratification - an unlikely outcome given that it is easy to name at least thirteen States that would most probably not ratify a proposal to repeal Amendment 22.

But there may be another approach, albeit not a legal one, that a sitting president, might consider, particularly a popular one, and this is what Americans must be alert for. The president could simply declare a crisis and announce, by Executive Order, that the president's term of office is being extended until further notice and that a special election will be held soon. He would face strong resistance at first, of course, but here are a few imaginative ways to get around it.

First, the Supreme Court would declare the act unconstitutional. The president would then declare the Supreme Court suspended. What alternative would the learned Justices have except to make a lot of noise.

Second, the Congress would be outraged, outraged at the audacity of the president. But let's keep in mind that members of Congress are politicians and politicians have only one overriding goal - get re-elected and stay in office. The president could easily quiet their howls by declaring that Congressional elections are suspended until further notice and all incumbent members will remain in office. Not many members of Congress, both Houses and both parties, would object to that. No more elections? It's heaven on earth. And they will rationalize their acquiescence by claiming it is better to remain in office where they can at least influence the president from the inside rather than looking in from the outside. In other words, don't expect Congressional heroics.

Third, the military, although sworn to uphold the Constitution, might simply remain in their barracks. By the time a president's second term is coming to an end most of the military leadership will be the president's people, as will all the senior commanders.

Fourth, the press. Ho hum.

Fifth, the States; some might secede and the president will let them go. Better to do that than to have them around creating trouble, but others will accept the terms being offered because the terms will include large subsidies to their treasuries, thereby helping to ensure their re-election. On the other hand, if the States stand up while the Federal military sides with the president, there would be open conflict between the Federals and the States' National Guard forces which would remain under the command of the Governors.

Sixth, the people of the United States. A large segment of the population might be willing to go along if the president is able to convince them that the crisis is real and he is only doing this for the good of the Country, and he will step down as soon as the crisis is over - unless the American people want him to stay in office, of course. Another segment would not be so accepting, would probably demonstrate, and clash with the police and supporters of the president.

Could a scenario such as this really play out? Yes, of course it could. Is it likely? Probably and hopefully not, because when push comes to shove the vast majority of the American people would say no to it and the military would in all likelihood remain true to their oath. But even the slim possibility demonstrates how fragile a democracy is.