Constitution Daily

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Term limits amendment would face uphill battle

January 5, 2017 by Scott Bomboy


Republican Senator Ted Cruz and Representative Ron DeSantis want a constitutional amendment to limit the terms members of Congress can serve in Washington. But will their efforts gain any traction?


Ted Cruz
Senator Ted Cruz

“The American people resoundingly agreed on Election Day, and President-elect Donald Trump has committed to putting government back to work for the American people,” Senator Cruz said in a statement on January 4. “It is well past time to put an end to the cronyism and deceit that has transformed Washington into a graveyard of good intentions.”


Under the amendment proposed by Cruz and DeSantis, House members would be limited to three two-year terms and Senators would be limited to two six-year terms.


If the recent history of the term limits movement remains true to form, it may be some time before a term-limits amendment joins the Constitution. Since 1789, just 27 amendments have been added to the Constitution, with 10 of those amendments arriving with the Bill of Right’s ratification in 1791. (The 18th Amendment was also repealed when Prohibition ended.)


More than 11,000 amendments have been proposed in congressional history, according to the Senate’s historian and 37 of those proposed amendments were approved by Congress for submission to the states.


So the bar for any constitutional amendment, let alone one limiting power in Congress – which likely needs to be approved by Congress – remains high. Under the Constitution’s Article V, the states could theoretically amend the Constitution without direct congressional involvement, a process that hasn’t been attempted yet and would also likely face legal challenges. The 27 amendments added to the Constitution were all drafted and approved by Congress before proposed for ratification to the states.


There is certainly wide public support for reform. In a 2013 Gallup poll, 75 percent of Americans expressed support for congressional term limits. Gallup said when the same question was asked in 1994 and 1996, between two-thirds and three-quarters of Americans favored a constitutional amendment to limiting congressional terms.


In the 2013 poll, there was more support for congressional term limits (75 percent) than ending the Electoral College (60 percent). That 75 percent is important, since three-fourths of the states are needed to ratify a proposed constitutional amendment.


And one person who has publicly supported term limits for Congress is Donald Trump.


“We’re going to put on term limits, which a lot of people aren’t happy about, but we’re putting on term limits,” Trump said in an interview with “60 Minutes” that aired right after his election in November. “We’re doing a lot of things to clean up the system.”


In recent years, proposed term limits amendments haven’t fared well in Congress. Back in 2012, then-Senator Jim DeMint got a term-limits vote on the Senate floor. It lost when 75 Senators voted against it.


The closest congressional term limits came to fruition was back in the 1990s, when there was a movement promoting state laws that allowed each state to place limits the terms served by Senators and Representatives representing their respective states.


However, a divided Supreme Court struck down those laws as unconstitutional in the 1995 case of U.S. Term Limits, Inc. v. Thornton. Writing for the majority, Justice John Paul Stevens said that  “the available historical and textual evidence … reveal the Framers’ intent that neither Congress nor the States should possess the power to supplement the exclusive qualifications set forth in the text of the Constitution.”


Such changes, Stevens said, needed to be made using the constitutional amendment process under Article V. Justice Anthony Kennedy, the swing vote in the 5-4 decision, added that, “There can be no doubt, if we are to respect the republican origins of the Nation and preserve its federal character, that there exists a federal right of citizenship, a relationship between the people of the Nation and their National Government, with which the States may not interfere.”


In his dissent, Justice Clarence Thomas argued that “nothing in the Constitution deprives the people of each State of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.”


Scott Bomboy is the editor in chief of the National Constitution Center.


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