The 22nd Amendment and Other Missing Parts of the Roberts Court's Constitutional Vision

As I noted here on the blog last week, I'll be spending the day tomorrow with lawyers, a judge, a journalist, and several other law professors discussing the most recent Supreme Court Term at the Practicing Law Institute's annual Review. One of the cases that will undoubtedly receive a great deal of attention is Trump v. Slaughter, in which the Court invalidated good-cause removal protection for members of the Federal Trade Commission and, by clear implication, nearly every other independent federal agency. When Slaughter was decided, I wrote a highly critical analysis of the opinion. I stand by my analysis but in today's essay I want to consider another ground for criticizing the ruling that was offered last week by my former colleague, Columbia Law Professor Jeffrey Gordon. In an essay last week on Balkinization, Professor Gordon argues that Slaughter is wrong in light of the 22nd Amendment.

Readers will recall that the 22nd Amendment is the one that Donald Trump keeps threatening to violate by running for a third term. It is also relevant to the president's removal power, Professor Gordon argues, for two reasons.

First, Slaughter and related cases that invoke the unitary executive theory rest on the claim that the president must be able to supervise and thus fire agency heads because the president is politically accountable in ways that agency heads are not. However, even if that was true before the 22nd Amendment, it is not true during a second-term president's second term. Thus, the 22nd Amendment changed a vital assumption that underwrites (or if you believe the Slaughter majority's history lesson, underwrote for the framers) the notion that making agency heads serve at the pleasure of the president enhances democratic accountability.

Second and more broadly, Professor Gordon explains that the 22nd Amendment was proposed and ratified during the heyday of independent agencies by people who saw independence from the president--especially one claiming a plebiscitary mandate in the way that FDR did--as a vital check on executive overreaching. Professor Gordon writes:

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.” . . . 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.  

To be sure, the text of the 22nd Amendment says nothing about the president's removal power, but, then, one must recall, neither does the rest of the Constitution, subject to one exception: officers may be removed by impeachment. Based on the text alone, one might think that the only means by which officers can be removed is impeachment and that therefore there are no limits on Congress's ability to provide good-cause protection against presidential removal. The Slaughter Court read the history of the early Republic as reflecting a contrary assumption by the framers and ratifiers that Article II's Vesting Clause and its Take Care Clause should be taken to limit good-cause removal protection. That reading of U.S. history is tendentious (as the Slaughter dissenters explained), but even if one accepts it, one can say that the 22nd Amendment changed the assumptions underlying how power is distributed.

A useful analogy might be the Court's 11th Amendment jurisprudence. There, the Court has held that the 11th Amendment did more than what its text literally says. Instead, in Hans v. Louisiana, the Court held that the 11th Amendment essentially adopted the view of the dissenters in Chisholm v. Georgia, adhering to what the Hans Court called the "spirit" of the Constitution. One can think, as I do, that Hans was wrong in light of how the text of the 11th Amendment parallels the text of Article III, without denying that a constitutional amendment can alter background assumptions even without expressly referring to them.

The Court has not always been attentive to such changes in background assumptions that constitutional amendments work. For example, in The Civil Rights Cases, the Court read the 14th Amendment narrowly, refusing to recognize that it reflected a dramatic shift in power from the states to the federal government. Professor Reva Siegel has argued that the Court might have located its sex equality jurisprudence in the 19th Amendment, which reflected shifts beyond the literal prohibition on sex-based restrictions of the franchise. Professor Akhil Amar once suggested that the Court's grant of full First Amendment protection to race-based hate speech neglected the possibility that at least some hate speech might be regulable as a badge or incident of slavery under the 13th Amendment.

I am not endorsing (or criticizing) any of these particular moves by jurists and scholars. What I am saying is that Professor Gordon's suggestion cannot be dismissed as pie-in-the-sky speculation by an academic. The notion that a constitutional provision can be transformative beyond its literal text is well established in both case law and scholarship.

I am thus persuaded by Professor Gordon's second point: even if we assume the Slaughter Court correctly interpreted the pre-22nd Amendment Constitution, it should have recognized that the Amendment rejected key assumptions on which that interpretation rested, rendering it incorrect as a reading of the current Constitution.

I am somewhat less persuaded by Professor Gordon's first point, however. Even before the 22nd Amendment, there was a longstanding norm according to which second-term presidents did not seek a third term. Professor Amar has noted three ambiguities concerning the scope of the norm: whether it barred all third terms or only consecutive terms; how to count partial terms; and whether the norm was defeasible for emergencies. But even recognizing these uncertainties, in the usual case, a president serving the second consecutive full term in normal times would have been unaccountable to the People long before the 22nd Amendment. In that sense, the 22nd Amendment didn't reflect much of a change in the Constitution as it existed from 1789 through 1941 (when FDR began his unprecedented third term).

Meanwhile, even setting aside the two-term norm, prior to the adoption of the 20th Amendment in 1933, every president who had either lost a bid for re-election or chosen not to run for another term was a lame duck for roughly four months: from Election Day in early November through March 4 of the following year. Even now, we have a lame duck period of two-and-a-half months, which can be the basis for considerable unaccountable mischief by an outgoing president. Thus, the 22nd Amendment did not create something entirely new in the form of a president who would not face the voters again.

However, these caveats do not provide a reason to reject Professor Gordon's first argument. Instead, I offer them as a friendly amendment. The argument as Professor Gordon frames it goes like this: Even if the pre-22nd Amendment Constitution made the president democratically accountable in the way the Slaughter Court presupposed, the post-22nd Amendment Constitution does not, and thus the Slaughter rule does not fit with the current Constitution. I would recast the argument this way: Under the two-term norm and given the long lame-duck period, the Constitution never made presidents nearly as democratically accountable to the People as the Slaughter Court presupposed, and thus the Slaughter rule was never justified, but it became even less justified after the 22nd Amendment converted the two-term norm into a rule.

Finally, I should emphasize that all of the foregoing is in addition to the other reasons the Slaughter dissenters and commentators (including me) have given to explain why the decision is wrong in principle and will likely lead to terrible consequences.

-- Michael C. Dorf