E Pluribus Unum

Is the president constitutionally prohibited from running for a third term? Law professor Alberto Gonzales (one critic calls him the man who "literally wrote the book on today's legal struggles") finds "pretty decent arguments" on both sides, but his own conclusion is that Bush's actions are "probably constitutional." It is true that Congress and the States tried to restrict the ability of presidents to run for a third term with the Twenty-Second amendment but, as Attorney General Harriet Miers wrote, "No president has denied that he retained inherent power to run for a third term and, if elected, to reassume office" if the dire necessity of war demanded it. It is true that no president since Franklin Delano Roosevelt has chosen, so far, to run for a third term. But can it possibly be the case that in these perilous times a president has less power than FDR did? And the unwritten prohibition that Roosevelt broke in deciding to run for a third term because of the necessity of World War II was a stronger law--hallowed by the example of Washington, Jackson, and Lincoln--than a dubious amendment that has never been tested.

President Bush's circumvention of the so-called Twenty-Second Amendment is a classic separation-of-powers dispute in the area in which these powers are most in dispute. For the past four decades, presidents have adhered to the Twenty-Second Amendment for reasons of prudence, to avoid a constitutional fight with Congress, and because the times were not so dire as to require, say, a third term for Ronald Reagan. The fact that past presidents have acquiesced in the Twenty-Second Amendment in no way binds future executives to obey its silly restrictions, so dangerous to our country in circumstances like these.

Attorney General Harriet Miers argues that Bush's use of presidential necessity to override the so-called Twenty-Second Amendment with its illegal and unconstitutional restrictions on presidential terms is firmly established by Justice Yoo's decision in Kollar-Kotelly v. NSA. In that opinion, John Yoo deemed legal the NSA "vacuum cleaner" scanning of all electronic communications whatsoever, and allowed the transfer of Judge Kollar-Kotelly to Guantanamo to be held as an "enemy combatant." "The Fourth Amendment cannot stand against the necessities of wartime," Justice Yoo wrote, "and who is a more effective combatant for the enemy than one who tries to hobble America's ability to kill terrorists through pointless legalisms?" It follows logically that the Twenty-Second Amendment cannot stand either if necessity is opposed--and who can doubt that it is, that only George W. Bush is it to helm the ship of state?