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Hastings Law Journal

Abstract

Presidential term limits are an important and common protection of constitutional democracy around the world. But they are often evaded because they raise particularly difficult compliance problems that we call “end game” problems. Because presidents have overwhelming incentives to remain in power, they may seek extraordinary means to evade term limits. Comparative experience shows that presidents rely on a wide range of devices, such as formal constitutional change, wholesale constitutional replacement, and manipulation of the judiciary to get around permanent bans on reelection. In this Article, we draw on this experience to show that, in many contexts, weaker bans on reelection for consecutive terms, rather than permanent bans on any reelection, are the best response to the end game problem. Would-be authoritarian presidents are more likely to comply with term limits that force a temporary exit from the presidency because they hold open the prospect of an eventual return to power. Furthermore, a ban on consecutive reelection will allow alternative political forces to strengthen and make substantial democratic erosion less likely. In this sense, the United States’ oft-cited presidential term limit, which allows two consecutive terms in office, but prohibits all future reelection, may not be the best model for preserving democracy.

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