Repealing the 22nd Amendment is a great idea, but not Republican Andy Ogles' (TN-5) idea of revising it to allow Trump a third term but not Clinton, Bush 43, nor Obama

 Constitutional amendment to allow Trump third term introduced in the House

Ogles' idea that Trump was denied the power inherent in two successive terms is an admission that the 22nd Amendment limits the power of the executive.

Is the Congress so limited? No.

Is the Judiciary so limited? No.

The 22nd Amendment is an unfair limitation on the power of the executive. 

That is why we have dueling tyrannies, one of the legislative, and one of the judicial.

The one has put us $36 trillion in debt because it has the power of the purse. The other has jammed a code down our throats from time to time because in Marbury vs. Madison the Supremes arrogated to themselves the final say on the meaning of the constitution.

The founders intended the three branches to be separate, contending, equal powers.

The 22nd Amendment prevents the executive from contending beyond two terms, and so we are condemned to focusing unnaturally on who will be president every four years, which has the ironic effect of exalting the presidency to the point that there is all this hubbub all the time about the imperial presidency when our real masters are others, a neat trick those masters work like mad to pull and pull and pull.

Term limit everybody, or term limit no one.

Jonathan Mitchell, the man ultimately behind the overthrow of Roe vs. Wade, is a constitutional departmentalist whose real target is judicial supremacy

Early on, Mitchell insisted that, although he personally opposes abortion, “I’m not an anti-abortion activist. I never have been.” His goal is to destroy “judicial supremacy”—the idea that the Supreme Court is the final authority on the meaning of the Constitution—a campaign with bipartisan potential at a moment when liberals and progressives have little to gain from an imposing conservative Court. ...

Mitchell disapproved of the Supreme Court’s use of “language that makes its precedents seem sacrosanct or irreversible,” even going “so far to equate its interpretations of the Constitution with the Constitution itself.” The conventional idea that courts can “strike down,” “invalidate,” or “block” statutes was, he wrote, simply wrong. A court can “opine” that a statute is unconstitutional and tell an official not to enforce it, but the statute nonetheless “remains a law until it is repealed by the legislature that enacted it.” ...

In their dissenting opinions on S.B. 8, both Chief Justice Roberts and Justice Sonia Sotomayor went to first judicial principles by invoking Marbury v. Madison to rebuke Mitchell’s judiciary-evading tactic. In Marbury, in 1803, Chief Justice John Marshall proclaimed, “It is emphatically the province and duty of the judicial department to say what the law is.” There, the Supreme Court, for the first time, declared an act of Congress unconstitutional and “entirely void.” Because the Court implied that its own authority to interpret the Constitution is superior to that of the other branches, the case is the fountainhead of judicial supremacy. One could view it as a power grab that we have mostly accepted for more than two hundred years.

Mitchell said he found it telling that Roberts and Sotomayor treated judicial supremacy as “axiomatic” rather than as “a choice that must be defended.” From the beginning of the country, there were prominent anti-federalists who were opposed to judicial supremacy. Thomas Jefferson—who was President when Marbury was decided—believed that “each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution.” Jefferson’s view, which scholars have called departmentalism, countered judicial supremacy with the claim that the power to determine whether acts violate the Constitution is enjoyed by each branch in its own sphere of action.

Several Presidents since have embraced departmentalism to varying degrees. Andrew Jackson explained his veto of Congress’s bill to recharter the Second Bank of the United States as being based on its unconstitutionality, even though the Supreme Court had approved Congress’s authority to so act years earlier. He said, “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both.” The same year, Chief Justice Marshall held that Georgia’s regulations on Cherokee lands violated federal treaties. An enraged Jackson didn’t enforce the ruling, which enabled Georgia to disobey it.

Abraham Lincoln resisted judicial supremacy in his scathing reaction to Dred Scott v. Sandford, in which the Court declared that Congress’s prohibition of slavery in the territories was unconstitutional. Lincoln, who was not yet President, acknowledged that the Court resolved the parties’ dispute, but he rejected the idea that the ruling authoritatively answered the constitutional question of slavery. In his first Inaugural Address, Lincoln further worried that, if policy on “vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court,” then “the people will have ceased to be their own rulers.” ...

Like other critics of judicial supremacy, Mitchell believes that Congress, rather than the Court, should have final say on constitutional meaning, even if it means rights might shift along with electoral outcomes—and the Court, where possible, should decide matters based on congressional statutes rather than judicial doctrines on constitutional rights.

That approach has recently put Mitchell at odds with other conservative lawyers.

More.

Just because Congress in 1869 stipulated a Supreme Court of nine doesn't mean Trump must appoint anyone

 Trump would be a fool not to make a Supreme Court appointment, of course, and he has done it, but the executive branch is co-equal and doesn't have an obligation to comply with the act of Congress from 150 years ago by appointing a replacement for RBG to make it nine if it doesn't want to make an appointment for prudential or even political reasons.

The executive can say the court costs too much and for that reason not make the appointment. The executive can say the court hears too few cases to require a ninth justice. The executive can say "eight is enough". Marbury v Madison, perhaps the most consequential decision ever, was decided by a Supreme Court 4-0 with a 6-member court (two were sick at the time). There was no magic odd-numbered formula which was required before that decision was made. No one today as a matter of politics views the decision as illegitimate for that reason, nor because the case was decided by too few members.

And FDR certainly is precedent for saying there were prudential reasons for believing the nine member court was inadequate for the historical moment. Just because he lost in this political quest doesn't mean it was illegitimate.

Consider that FDR wanted to pack the court in 1937 through a bill scheming to swell its numbers because the Supreme Court kept thwarting his New Deal legislation in Congress as unconstitutional from 1933. The Great Depression was a dire moment in American history, requiring, in FDR's mind, one attempt after another to alleviate it, no matter how unprecedented.

The other powers that be thought otherwise.

But eventually and fortuitously one justice on the Supreme Court, named Roberts !!! by the way, actually switched sides to favor a New Deal case pleasing to FDR, which ended up having the odd result of taking the wind out of FDR's court-packing sails.

The March 1937 5-4 decision came to be known for this reason as "the switch in time which saved nine". The court showed that it could, in fact, rule New Deal ideas constitutional. That removed the argument for packing the court, by effect if not by intent. The nine member court was adequate after all.

It's an interesting case showing the power of the Supremes, not just to rule, but to maneuver.

The presidential appointment power is a political matter because the president is elected.

But don't kid yourself that the court absolutely eschews politics when rendering its opinions. Though not politically conservative in nature, a March 1937 ruling upholding innovative, New Deal legislation, ended up preserving the traditional character of the Supreme Court reaching back to just after the Civil War. And it persists to this day.

The founders were genius in this respect, recognizing that political forces are inescapable and must be accepted, accounted for, and balanced in order to prevent a lurch into the absolute tyranny of a single one of the branches of government.

The imperative of the moment is the free exercise of politics within the constitutional framework, not tampering with the framework.

Then most Federalist Society folks are kooky: Senators and Representatives and Judges keep chairs warm for decades while POTUS becomes a lame duck immediately upon re-election

We live under the spendthrift tyranny of the legislative feared by Madison, with its access to the pockets of the people, augmented by a renegade judiciary before which the other two branches remain supine because of Marbury.

Evidently Obama Learned Hostility Toward Marbury v. Madison (1803) at Harvard Law

From an editorial in The Wall Street Journal, pointing out there would be nothing unprecedented in the Supreme Court overturning ObamaCare:

In Marbury in 1803, Chief Justice John Marshall laid down the doctrine of judicial review. In the 209 years since, the Supreme Court has invalidated part or all of countless laws on grounds that they violated the Constitution. All of those laws were passed by a "democratically elected" legislature of some kind, either Congress or in one of the states. And no doubt many of them were passed by "strong" majorities.

Read the full opinion rebuking Obama's complaint about judicial activism here.

I don't buy the argument that Obama is ignorant of these fundamentals of the history of American law. I think he's hostile towards them, and wants them all swept away, along with the Constitution.