Constitutional Law and Politics Archives

Introduction In the spring of 2018, addressing a crowd of donors during an event at his Florida estate, President Donald J. Trump made what appeared to be a joke. He was talking about the recent amendment of China’s Constitution to remove presidential term limits, allowing President Xi Jinping to serve in that office indefinitely.[footnote]David Shepardson, Trump Praises Chinese President Extending Tenure ‘for Life,’ Reuters (Mar. 3, 2018), https://www.reuters.com/article/us-trump-china/trump-praises-chinese-president-extending-tenure-for-life-idUSKCN1GG015 [https://perma.cc/PY7G-X5SX].[/footnote] About Xi, Trump said: “He’s now president for life, president for life. And he’s great . . . . And look, he was able to do that. I think it’s great. Maybe we’ll have to give that a shot someday.”[footnote]Id. (internal quotation marks omitted).[/footnote] The crowd cheered and applauded in response.[footnote]Id.[/footnote] President Trump’s suggestion may seem comically far-fetched to an American audience, even if by this point the joke—which he continues to make in one form or another on a regular basis—is starting to wear thin.[footnote]President Trump has made similar comments live and via Twitter many times since taking office. See Chris Cillizza, Donald Trump Just Keeps ‘Joking’ About Serving More than 2 Terms as President, CNN (June 18, 2019), https://www.cnn.com/2019/06/18/politics/ donald-trump-term-limit/index.html [https://perma.cc/U598-T9RH].[/footnote] Many foreign observers, however, would probably urge caution, as the evasion of constitutionally mandated presidential term limits is strikingly common around the world. China’s Xi Jinping is not the only incumbent who successfully extended term limits by amending the constitution: Leaders such as Rwanda’s Paul Kagame, Colombia’s Alvaro Uribe, and Algeria’s Abdelaziz Bouteflika, among many others, have taken this path.[footnote]See infra section III.A.[/footnote] But if Trump really wanted to overstay, amendment is not the only way to “give [it] a shot.”[footnote]Shepardson, supra note 1. The amendment strategy would require a change to the Twenty-Second Amendment of the U.S. Constitution, which establishes that “[n]o person shall be elected to the office of the President more than twice.” U.S. Const. amend. XXII. Article V’s amendment procedures require that three-fourths of state legislatures or ratifying conventions approve an amendment for it to become part of the Constitution. Id. art. V.[/footnote] One option is to emulate Russia’s Vladimir Putin and find a successor who can be controlled.[footnote]See infra section IV.C.[/footnote] Another is to follow Bolivia’s Evo Morales and stack the highest court with sympathetic judges who are willing to reinterpret the constitution’s term limit provision.[footnote]See infra notes 364–371 and accompanying text.[/footnote] Yet another is to use Peru’s Alberto Fujimori’s strategy of calling a constitutional assembly and arguing that the new constitution hits the reset button on term limits.[footnote]See infra notes 304–305 and accompanying text.[/footnote] While most of these strategies might be hard to implement in a consolidated democracy like the United States, American constitutional scholars have proposed potential work-arounds. Most notably, Yale Law Professor Akhil Reed Amar has argued that the President of the United States could potentially hold on to power for up to sixteen years, provided he or she alternated that office with the Vice Presidency.[footnote]See Akhil Reed Amar, Clinton–Obama, Obama–Clinton: How They Could Run Together and Take Turns Being President, Slate (Mar. 21, 2008), http://www.slate.com/ articles/news_and_politics/jurisprudence/2008/03/clintonobama_obamaclinton.html [https://perma.cc/3LL4-LCC4].[/footnote] Professor Amar’s argument is that the President—without violating the Twenty-Second Amendment—could resign (or transfer power under the Twenty-Fifth Amendment) prior to the end of his first term, be appointed as Vice President, win reelection as Vice President, switch back to the presidency, and subsequently be reelected as President—all while maintaining the ability to seek reelection again as Vice President.[footnote]Id.; see also U.S. Const. amend. XXII.[/footnote] These kinds of strategies are surprisingly common around the world. While many observers have pointed out that term limits are not set in stone, few have noted how regularly leaders attempt to evade those limits. In this Essay, we take stock. Based on a comprehensive and original survey of all countries with presidential term limits in their constitutions since 2000, we find that about one-third of all those who reached the end of their prescribed term attempted to remain in office. If we exclude the world’s consolidated democracies with maximum democratic performance, about half of the leaders that reached the end of their term devised some strategy to stay in power past the constitutionally mandated expiration date. But the phenomenon is not limited to failing democracies or functional autocracies. Even in some mature democracies like Costa Rica and South Korea, constitutional term limits are the subject of ongoing debate.[footnote]See infra notes 121–122 and accompanying text.[/footnote] Notably, none of the twenty-first century’s evasion attempts involved ignoring the constitution outright.[footnote]Although the period from the late nineteenth century to the end of the twentieth century saw a number of leaders ignore the constitution outright, this has not happened in the twenty-first century. A prior study reports nine such cases historically: Costa Rica (1870, 1885), Angola (1979), Bolivia (1971), Eritrea (1993), Guatemala (1898), Nicaragua (1911), Paraguay (1880), and Peru (1933). See Tom Ginsburg, James Melton & Zachary Elkins, On the Evasion of Term Limits , 52 Wm. & Mary L. Rev. 1807, app. at 1869 tbl.A1, 1870 tbl.A2 (2011) [hereinafter Ginsburg et al., On the Evasion].[/footnote] Instead, incumbents universally showed nominal respect for the constitution by using constitutional rules and procedures to circumvent term limits. The most common strategy to get around the constitution is simply to amend it: Sixty-six percent of the evasion attempts in our data involved amending the constitution in some way. For a powerful president, amendment is the most common strategy, presumably because it gives him the most solid legal footing. Once the constitution has been amended, what at first seems like an illegitimate evasion attempt has become authorized by the country’s highest law. Amendment, however, can be risky: It requires the president to be sufficiently powerful to meet the supermajority that is required to change the constitution. Indeed, we find that in no fewer than forty percent of the cases in which presidents or their parties initiate constitutional amendments, they fail to pass them. In most cases, failure is caused by widespread popular resistance—as happened recently in Paraguay[footnote]See infra notes 204–220 and accompanying text.[/footnote] and Burkina Faso,[footnote]See infra notes 221–227 and accompanying text.[/footnote] where protesters literally burned down their national legislative chambers. Needless to say, such failures are politically costly; they require presidents to spend substantial political capital on what turns out to be a failed initiative, and their legacies may suffer. For that reason, amendment is not always a feasible strategy for incumbents seeking to overstay their terms. Less noticed is that constitutional amendment is only one of a number of tools at a would-be overstaying president’s disposal. The bulk of the existing literature focuses on constitutional amendment,[footnote]See. e.g., John M. Carey, The Reelection Debate in Latin America, Latin Am. Pol. & Soc’y, Spring 2003, at 119, 123–25 (studying evasion through amendment); see also Gideon Maltz, The Case for Presidential Term Limits, J. Democracy, Jan. 2007, at 128, 128–29 (noting that between 1992 and 2006, twenty-six presidents worldwide exceeded their term limits by eliminating the limits, securing judicial decisions that their first terms did not count, or amending their constitutions). In each of these studies, the range of strategies documented is more limited than ours. Our study further includes the most recent attempts.[/footnote] but there are a number of other ways to remain in office beyond the expiration date without blatantly violating the constitution. We believe that our survey is the most comprehensive attempt to document the full range of evasion strategies. In addition to constitutional amendment, we identify four distinct methods that do not involve amendment but that arguably do not violate the constitution.[footnote]For discussion of the amendment strategy, see infra Part III.[/footnote] Together, these strategies make up forty-four percent of the twenty-first century’s evasion attempts. The first of these is what we call the “blank slate theory,” which involves the drafting of a wholly new constitution along with the assertion that the new constitution means hitting the reset button on term limits.[footnote]See infra section IV.A.[/footnote] A second strategy is to use the courts to interpret away constitutional term limits. This strategy is remarkable, as term limit provisions are an example of a particularly clear constitutional rule—as opposed to a more ambiguous standard—and, at face value, seem particularly difficult to reinterpret. Even so, presidents who control their courts have been able to secure judgements that effectively removed term limits.[footnote]See infra section IV.B.[/footnote] A third approach is what we call the “faithful agent strategy,” which involves presidents seeking a successor they can control so that they can continue to govern even while formally out of office.[footnote]See infra section IV.C.[/footnote] Finding a faithful agent can be difficult, but the strategy has a very high-profile success story: President Vladimir Putin, who used Dmitry Medvedev as a “placeholder president” after Putin’s term was up, while Putin pulled all the strings.[footnote]See Fiona Hill & Clifford G. Gaddy, Mr. Putin: Operative in the Kremlin 7–8 (2015).[/footnote] A final strategy is to delay elections by citing some form of political instability.[footnote]See infra section IV.D.[/footnote] The success rate of these strategies is higher than for amendment: Collectively, attempts to delay elections succeeded in about two-thirds of the attempts, with the blank slate theory succeeding every time it was tried and the use of courts failing only once.[footnote]See infra Table 1.[/footnote] Although evasion attempts are rampant and incumbents are increasingly savvy in overstaying without committing blatant constitutional violations, they often fail. About one-third of the incumbents who attempted to overstay were unsuccessful, especially those who attempted to amend the constitution risked failure: Forty percent of such attempts failed.[footnote]See infra Table 1.[/footnote] And while less common overall, the faithful agent theory proved particularly hard to execute: Two-thirds of the incumbents who tried this strategy failed. Ours is the first study to document failed attempts, allowing us to provide new insights into the reasons why some incumbents fail to overstay. While the collection of failed evasion attempts is in itself a rich treasure trove of noteworthy stories, this is far from its only value. We find two key insights about failed attempts to be novel and important. The first is that courts do not play a strong role in preventing the erosion of term limits. Ever since the Colombian Constitutional Court prevented the highly popular President Alvaro Uribe from running a third time by declaring a constitutional amendment attempt to be unconstitutional,[footnote]David Landau, Presidential Term Limits in Latin America: A Critical Analysis of the Migration of the Unconstitutional Constitutional Amendment Doctrine, 12 Law & Ethics Hum. Rts. 225, 231–33 (2018) [hereinafter Landau, Presidential Term Limits].[/footnote] legal scholars have used the case to point out how courts can safeguard against democratic erosion.[footnote]See, e.g., Samuel Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts 159 (2015) (describing the Constitutional Court decision as a “tremendous achievement” that prevented Colombia’s “descent into a one-man rule, with its attendant cronyism and compromise of governmental function”); Vincente F. Benítez R. & Germán A. González H., El Rol de las Cortes y la Protección de la Democracia: Una Aproximación desde Regímenes Transicionales [The Role of the Courts Sustaining Democracy: An Approach from Transitional Regimes], Rev. Der. del Estado [R.D.E.], enero-junio del 2016, at 41, 48 (Colom.) (detailing the creation of a robust Colombian Constitutional Court designed with the power to annul laws or constitutional reforms when they are unconstitutional); David Landau, Abusive Constitutionalism, 47 U.C. Davis L. Rev. 189, 203 (2013) (characterizing the Colombian Constitutional Court judgment as a decision that averted “a significant erosion of democracy by preventing a strong president from holding onto power indefinitely”); Gonzalo Andres Ramirez-Cleves, The Unconstitutionality of Constitutional Amendments in Colombia: The Tension Between Majoritarian Democracy and Constitutional Democracy, in Democratizing Constitutional Law: Perspectives on Legal Theory and the Legitimacy of Constitutionalism 213, 227 (Thomas Bustamante & Bernardo Goncalves Fernandes eds., 2016) (“The doctrine of substitution of the Constitution in Columbia that has been implemented since the Judgment C-551 of 2003, which led to the declaration of unconstitutionality of five amendments to the Constitution, has been a good way to protect constitutional democracy against a majoritarian conception of democracy . . . .”).[/footnote] Yet our study reveals that faith in courts might be misguided. We find that the Colombian Constitutional Court is the only court that has ever halted an evasion attempt (in Niger, the Constitutional Court tried, but failed).[footnote]See infra notes 250–281 and accompanying text.[/footnote] Perhaps more remarkably, we find that most of the time, courts act as agents of the incumbent and actually help him to serve beyond the original expiration date. In what looks to be a growing trend, a number of courts, chiefly in Latin America, have essentially interpreted away the term limit provisions enshrined in their constitutions. In other cases, courts have validated presidents’ arguments that a new constitution represents a blank slate or that they can serve beyond their original expiration date when it is not possible to hold elections. In a full thirty percent of the cases where the incumbent successfully overstayed, the courts played some role in this success. For the most part, then, courts have actually facilitated the removal of term limits. A second important insight is that sustained popular resistance is a more effective means to halt evasion attempts than reliance on the courts. The bulk of failed cases involve constitutional amendment, and in the overwhelming majority of cases where popular amendment failed, it was because of unexpected headwinds in the form of popular resistance. After all, amendment is a highly visible event and it gives the opposition something to mobilize around. Especially where opposition movements are able to build broad coalitions that include a range of actors, such as political parties, students, trade unions, business interests, clergy, ordinary citizens, and civil society groups, they can be quite effective in thwarting term limits evasion. This Essay is a positive rather than normative exercise. There is a long-standing debate over the merits of term limits, going back to the American founding when the framers of the U.S. Constitution stood divided on the issue.[footnote]For example, Thomas Jefferson thought that term limits were necessary to curb executive ambition and considered the absence of term limits in the U.S. Constitution one of the biggest defects in the document. See Ginsburg et al., On the Evasion, supra note 13, at 1813, 1819; Marc P. Petracca, Rotation in Office: The History of an Idea , in Limiting Legislative Terms 19, 30 (Gerald Benjamin & Michael J. Malbin eds., 1993).[/footnote] Since then, much ink has been spilled over the question of whether term limits are desirable.[footnote]Compare Javier Corrales & Michael Penfold, Manipulating Term Limits in Latin America, J. Democracy, Oct. 2014, 157, 162–65 (suggesting that one of the most serious problems with consecutive reelection is the incumbency advantage and documenting that being the incumbent is the most powerful variable affecting the margin of victory in presidential elections), and Maltz, supra note 16, at 135–38 (arguing that term limits are important for party alternation, which in turn is crucial for democratization), with Paul Jacob, From the Voters with Care, in The Politics and Law of Term Limits 27, 38–39 (Edward H. Crane & Roger Pilon eds., 1994) (suggesting that opponents of term limits believe that they restrict democratic choice). For a middle approach, see Ginsburg et al., On the Evasion, supra note 13, at 1813–14 (characterizing term limits as default rules that may be overcome with sufficient political support).[/footnote] Our own normative starting point is that it is good for presidents to rotate in and out of power. But this Essay does not dwell long on the merits or demerits of term limits; the main goal is to improve our understanding of how term limit evasion happens, whether constitutions and constitutional courts play a role, and whether evasion attempts can be stopped. A cynical critique of this exercise might be that it offers a guidebook for would-be dictators on how to evade their constitutions. While we are mindful of this criticism, we believe that it is important to understand how evasion attempts unfold. Further, the exercise offers critical insights for those who seek to resist evasion attempts, such as the lesson that opponents of overstay should not put their faith in the courts but mobilize, build broad coalitions, and stage mass protests. Because in many cases popular resistance played a decisive role in thwarting term limit evasion, it is our hope that a better understanding of the array of strategies incumbents employ will be useful in guiding popular resistance against future attempts. We are not the first to explore term limit evasion in this manner, but we believe our study differs in critical ways from earlier exercises. First, our observations are global: Most of the prior literature consists of regional or single country studies. At least half a dozen regional studies have documented term limit evasion attempts in Latin America[footnote]See generally Landau, Presidential Term Limits, supra note 25 (exploring recent attempts by incumbent presidents in Latin America to eliminate or weaken presidential term limits); Elena Martínez-Barahona, Constitutional Courts and Constitutional Change: Analysing the Cases of Presidential Re-Election in Latin America, in New Constitutionalism in Latin America: Promises and Practices 289 (Detlef Nolte & Almut Schilling-Vacaflor eds., 2012) (examining the role of courts in presidential reelections in Costa Rica and Nicaragua); Carey, supra note 16 (summarizing the history of presidential reelection across Latin America and noting historical and contemporary arguments for and against presidential reelection); Javier Corrales, Can Anyone Stop the President? Power Asymmetries and Term Limits in Latin America, 1984–2016, Latin Am. Pol. & Soc’y, Summer 2016, at 3 [hereinafter Corrales, Power Asymmetries and Term Limits](studying thirty-six efforts to change presidential term limits in Latin America); Corrales & Penfold, supra note 29 (analyzing changes in reelection rules in Latin American countries by incumbent presidents); Tomáš Došek, Reformas de Reelección Presidencial en América Latina en 2015: Estrategias e Intereses Electorales de las Élites Políticas [Presidential Reelection Reforms in Latin America in 2015: Strategies and Interests of Political Elites], Rev. de Der. Electoral, Primer Semestre 2018, at 63–73 (Costa Rica) (reviewing reelection reforms in Brazil, Colombia, the Dominican Republic, and Honduras in 2015).[/footnote] and Africa.[footnote]See generally Adeolu Durotoye, Resurgent Backsliding and Democracy in Africa, 18 Int’l J. Afr. & Asian Stud. 39 (2016) (analyzing attempts by dictators in several African countries to abrogate term limits); Daniel N. Posner & Daniel J. Young, The Institutionalization of Political Power in Africa, J. Democracy, July 2007, at 126 (suggesting that term limit enforcement is the biggest challenge for limiting presidential power); Denis M. Tull & Claudia Simons, The Institutionalisation of Power Revisited: Presidential Term Limits in Africa, Afr. Spectrum, Aug. 2017, at 79 (using term limits as an indicator for the institutionalization of power); Daniel Vencovsky, Presidential Term Limits in Africa, Conflict Trends, Apr. 2, 2007, at 15 (providing an overview of the forms of departure used by African leaders since the 1990s).[/footnote] Single-country studies have documented the nuances of evasion attempts in places like Colombia,[footnote]Carlos Bernal, Unconstitutional Constitutional Amendments in the Case Study of Colombia: An Analysis of the Justification and Meaning of the Constitutional Replacement Doctrine, 11 Int’l J. Const. L. 339 (2013).[/footnote] Honduras,[footnote]David E. Landau, Rosalind Dixon & Yaniv Roznai, From an Unconstitutional Constitutional Amendment to an Unconstitutional Constitution? Lessons from Honduras, 18 Global Constitutionalism 40 (2019) [hereinafter Landau et al., From an Unconstitutional Constitutional Amendment].[/footnote] Bolivia,[footnote]Alan E. Vargas Lima, La Reelección Presidencial en la Jurisprudencia del Tribunal Constitucional Plurinacional de Bolivia: La Ilegítima Mutación de la Constitución a Través de una Ley de Aplicación Normativa [The Presidential Reelection in the Jurisprudence of the Plurinational Constitutional Court of Bolivia: The Illegitimate Mutation of the Constitution Through Normatively Applied Law], Rev. Boliviana de Der., enero 2015, at 457–59.[/footnote] Argentina,[footnote]Mario Serrafero, Reelección y Sucesión Presidencial: Poder y Continuidad: Argentina, América Latina y EE. UU. [Presidential Reelection and Succession: Power and Continuity: Argentina, Latin America, and the United States] 125–28 (1997).[/footnote] Russia,[footnote]William A. Clark, The 2012 Presidential Election in Russia: Putin Returns, 32 Electoral Stud. 374 (2013).[/footnote] Ecuador,[footnote]Carlos Bernal Pulido, Aparicio Caicedo & Mario Serrafero, Reelección Indefinida vs. Democracia Constitucional: Sobre los Límites al Poder de Reforma Constitucional en el Ecuador [Indefinite Reelection vs. Constitutional Democracy: On the Limits of the Power of Constitutional Reform in Ecuador] 11–15 (2015).[/footnote] Brazil,[footnote]Maria D’Alva G. Kinzo & Simone Rodrigues da Silva, Politics in Brazil: Cardoso’s Government and the 1998 Re-Election, 34 Gov’t & Opposition 243 (1999).[/footnote] Venezuela,[footnote]Michael Penfold, La Democracia Subyugada: El Hiperpresidencialisimo Venezolano [Venezuela’s Hyperpresidentialism: Democracy Subjugated], 30 Rev. de Ciencia Política 21 (2010) (Chile).[/footnote] Paraguay,[footnote]Ignacio González Bozzolasco, Paraguay: La Reelección Presidencial y los Inicios de la Carrera Electoral 2018 [Paraguay: The Presidential Reelection and the Beginnings of the 2018 Electoral Race], 37 Rev. de Ciencia Política 543, 544 (2017) (Chile).[/footnote] Zambia,[footnote]Peter Burnell, Zambia’s 2001 Elections: The Tyranny of Small Decisions, ‘Non-Decisions’ and ‘Not Decisions,’ 23 Third World Q. 1103 (2002).[/footnote] Namibia,[footnote]Henning Melber, ‘Presidential Indispensability’ in Namibia: Moving out of Office but Staying in Power?, in Legacies of Power 98, 98–116 (Roger Southall & Henning Melber eds., 2006).[/footnote] Malawi,[footnote]Seán Morrow, Toxic Mushrooms? The Presidential Third-Term Debate in Malawi, in Legacies of Power, supra note 42, at 151, 151–74.[/footnote] and Uganda,[footnote]Roger Tangri, Politics and Presidential Term Limits in Uganda, in Legacies of Power, supra note 42, at 175, 175–96.[/footnote] among others. At present, there are two prior global surveys, one by Professor Gideon Maltz[footnote]See Maltz, supra note 16, at 128–29.[/footnote] and another by Professors Tom Ginsburg, Zachary Elkins, and James Melton.[footnote]See Ginsburg et al., On the Evasion, supra note 13, at 1833–43.[/footnote] Our study differs from these studies in at least three essential ways. First, and most importantly, ours is the first survey to include failed evasion attempts. Second, we create and apply a more granular and detailed classification of the evasion attempts that do not involve amendment. Finally, we analyze a set of remarkable attempts at evasion using the courts, an emergent strategy that has not been captured by the earlier studies. The remainder of this Essay proceeds as follows. Part I reviews the different rationales for term limits. In doing so, it pays particular attention to the changing nature of authoritarianism. Though our analysis is not limited to authoritarian regimes, most of the term limit evasion strategies occur in countries with less than stellar democratic pedigrees. What is more, the nature of authoritarianism has changed profoundly since the 1990s. Instead of coming to power through coups d’état and governing through brute force, today’s authoritarians tend to be democratically elected and operate with nominally democratic institutions, including facially liberal constitutions. Yet in many cases, presidents are able to abuse these institutions to suit their purposes. It is vital to understand that term limit evasion operates against this backdrop: Today’s autocrats work around them by using the very constitutional processes that were meant to constrain overly powerful executives in the first place. Part II introduces our original global survey and presents the key findings from our data. It records the prevalence of evasion attempts, alongside the prevalence of failures. We also document the characteristics of those that attempt to overstay. One small but notable finding is that every one of the leaders that attempted to overstay was male. We highlight that here because, in the remainder of this Essay, we will use the male pronoun to refer to incumbents who seek to evade the constitution. Parts III and IV take a deep dive into the particularities of the different evasion strategies. Part III focuses on amendment, which remains the most common method. It describes the different versions of the amendment approach and what it takes for amendments to succeed. Throughout, we provide examples from around the world, including Rwanda, Burundi, Tajikistan, Paraguay, Burkina Faso, Malawi, and others. Part IV focuses on strategies other than constitutional amendment that arguably still do not amount to a constitutional violation: the blank slate theory, using courts to reinterpret the constitution, the faithful agent strategy, and delaying elections. It reflects on what is required for these strategies to be successful and draws on examples from places like Bolivia, Nicaragua, Honduras, Guyana, and Sudan to reflect upon the rationales behind these strategies. Finally, we conclude by reflecting on what our research tells us about the constitution’s ability to constrain the executive.