The Law and Politics of Presidential Term Limit Evasion

50 Pages Posted: 27 Mar 2019 Last revised: 29 Mar 2019

See all articles by Mila Versteeg

Mila Versteeg

University of Virginia School of Law

Timothy Horley

University of Virginia School of Law

Anne Meng

University of Virginia

Mauricio Guim

Instituto Tecnológico Autónomo de México (ITAM) - Law School

Marilyn Guirguis

Independent

Date Written: March 25, 2019

Abstract

Since the turn of the millennium, a remarkably large number of incumbent presidents have managed to stay past the end of their constitutionally mandated terms. Russia’s Vladimir Putin, Rwanda’s Paul Kagame, and Colombia’s Alvaro Uribe represent a sizeable collection of presidents who were democratically elected but remained in power long past their original mandates. Such attempts to stay in office are not new, but in recent decades their nature has changed.

In this Article, we present findings from an original and comprehensive survey of all evasion attempts since the year 2000. Tracing the constitutional strategies of 234 incumbents in 106 countries, we document the range of constitutional strategies these incumbents have pursued, along with how they succeeded or failed. This exercise has revealed a number of insights. First, evasion attempts are very common. Globally, no fewer than one-third of the incumbents who reached the end of their prescribed term pursued some strategy to remain in office. If we exclude the world’s strongest democracies, we find that about half of the leaders that reached the end of their term attempted to overstay. Second, and perhaps most illuminating, none of these attempts involved ignoring the constitution outright. Instead, incumbents universally displayed nominal respect for the constitution by using constitutional rules and procedures to circumvent term limits, with about two-thirds attempting to amend the constitution. But constitutional amendment is not the only legal strategy at the would-be overstayer’s disposal—presidents have tried many methods. Most notably, a number of incumbents have relied on their courts to interpret constitutional term limits out of the constitution. Other strategies uncovered by our study include: drafting a brand-new constitution and asserting that the new constitution effectively hits the “reset button” on term limits; finding a faithful-agent replacement leader whom the incumbent can control after he is out of office; and delaying elections by citing some form of political instability.

Though evasion attempts are common, they are no sure thing, and often fail. Our survey is the first ever to document and analyze failed attempts. We discover that about one-third of incumbents who attempted to overstay were unsuccessful. Importantly, in the vast majority of these cases, they failed because the attempt encountered widespread popular resistance. By contrast, courts were mostly ineffectual in halting evasion attempts. This finding contradicts much of the existing literature on this subject, which has emphasized the potential role that courts can play in enforcing term limits, and thus in safeguarding against democratic erosion. If anything, our survey reveals that courts mostly do the opposite: validate the president’s attempt to remain past his term. For those who seek to enforce constitutional term limits, this finding implies that building broad resistance movements might be more effective than putting their faith in courts.

Keywords: comparative constitutional law, term limits, presidential powers

Suggested Citation

Versteeg, Mila and Horley, Timothy and Meng, Anne and Guim, Mauricio and Guirguis, Marilyn, The Law and Politics of Presidential Term Limit Evasion (March 25, 2019). Columbia Law Review, 2020; Virginia Public Law and Legal Theory Research Paper No. 2019-14. Available at SSRN: https://ssrn.com/abstract=3359960

Mila Versteeg (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Timothy Horley

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Anne Meng

University of Virginia

1400 University Ave
Charlottesville, VA 22903
United States

Mauricio Guim

Instituto Tecnológico Autónomo de México (ITAM) - Law School ( email )

Río Hondo No.1
Álvaro Obregón, Mexico City
Mexico

Marilyn Guirguis

Independent

No Address Available

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