Walking on the edge of 'Constitutional Cliffhangers'


Last updated 1/9/2024 at 9:51am

Suppose a twice-elected president sought to serve a third term despite text in the U.S. Constitution limiting presidents to two “elected” terms? Borrowing trouble? Sure, but could she succeed? Spoiler alert: Maybe so.

Lawyers use fictional stories like that — called “hypotheticals” in the trade — to anticipate issues that could arise in future controversies.

In Constitutional Cliffhangers, A Legal Guide for Presidents and their Enemies (2012), law professor Brian Kalt borrows six kinds of trouble in a series of what-if short stories about future presidencies. Kalt’s foresight converges with current events near the bullseye of some of today’s fiery debates about the Constitution. For example: Is President Trump immune from criminal prosecution? See chapter one. And, if convicted and sentenced for a federal crime before winning election, could the newly inaugurated President Trump pardon himself? See chapter two.

Kalt fairly presents detailed arguments on all sides of each of his stories. In addition to the stories already mentioned, he considers: Complications arising from a dispute about a president’s continued fitness for office (Section 4 of the 25th Amendment); What happens if the Speaker of the House and the Secretary of State simultaneously claim to be the sole lawful successor to an assassinated president who had no vice president; and whether an ex-president can be impeached (Article II, Section 4). Kalt offers potential solutions in his final chapter.

Extensive endnotes and comprehensive summaries of the arguments mark this as a serious and scholarly book. Reading it is like climbing Black Butte. Most people moving at their own pace will finish the hike. Everyone who summits will be rewarded.

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Kalt asserts that political “self-interest” usually predicts how politicians will behave. In his stories, the tension creating the interesting issues often arises between rival politicians driven by political self-interest to pursue their conflicting ambitions to a bitter end.

It would be unfair to fault Professor Kalt for giving relatively short shrift to the possibility that self-sacrificial statecraft might defuse in a constitutional cliffhanger. He’d have written “Profiles in Courage” instead of his own book if he had spun six yarns about politicians sacrificing short-term ambition to larger long-term public interests.

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But hope and history suggest that a few leaders will occasionally take the high road.

Is it impossible for us to imagine, for example, a president with sufficient maturity to avoid even the appearance of criminal activity? Such a president wouldn’t need to worry much about whether she is immune from prosecution or can pardon herself.

And we don’t have to rely on faith alone to imagine politicians who may subordinate their individual interest to the greater good.

Vice President Mike Pence surely must have known that he was sacrificing his political future in refusing to unilaterally reject the electoral votes submitted by several states on January 6, 2021. Yet he repeatedly resisted heavy pressure to put his finger on the scale.

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In the razor-thin contest of 2000, Vice President (and candidate) Al Gore strenuously disagreed with the Supreme Court’s post-election ruling for George Bush in Bush v. Gore. But, his legal options in court having been exhausted, Gore didn’t pursue his individual self-interest by taking the battle to Congress via Pennsylvania Avenue. Instead, he conceded to Bush the day after he lost in the Supreme Court. He said he did so “For the sake of our unity as a people and the strength of our democracy.” Weeks later, on January 6, 2001, he had the duty of presiding over the electoral vote count that sealed his defeat. On that day, a surprisingly good-humored Gore gaveled down 14 objections and denied five motions — all from friends on his side of the political aisle. Any of the objections or motions could have derailed the process and kept alive Gore’s very faint hope of reversing the Supreme Court’s ruling in Congress.

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On those occasions, Pence and Gore arguably put the national interest above their individual political self-interest. As you read Kalt’s book, consider how a little less self-interest and a little more statecraft might change the cliffhangers he describes.

Constitutional Cliff- hangers is available through Paulina Springs Books in Sisters.

Now back to that would- be third-term president. Imagine a president in her second term whose vice president has been brought to heel so thoroughly that he answers ‘how high’ whenever the president tells him to jump. Both are nominated for and elected to the other’s former office. Then the newly-elected president (the spineless former vice president) resigns. The newly-elected vice president (the former president) becomes president for her third term — all without having violated the text of the constitutional limit to two ‘elected’ terms.

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A three-term president sounds crazy, right? But stranger things have nearly happened. Read chapter six of Kalt’s book for all the arguments.

The author formerly served as Deputy Attorney General of Oregon. In 2017 he retired from the representation of clients. Between 2019 and December 29, 2023, he volunteered as a Circuit Judge Pro Tem in Oregon’s 22nd Judicial District.


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