Term Limits: Constitutional Amendment Needed?

The idea of imposing term limits on members of Congress has gained traction in recent years, with various proposals suggesting different lengths of terms for both the House of Representatives and the Senate. While this idea is popular among the public, with a high percentage of people supporting it, implementing it as a constitutional amendment is challenging. The Constitution's Article V outlines two paths to amending it: the conventional path requires two-thirds of the House and Senate to propose an amendment, with three-quarters of the states ratifying it, while the unconventional path involves calling a constitutional convention of states, which has never been done before. Despite the challenges, some groups continue to advocate for congressional term limits through an Article V convention or by proposing joint resolutions for a constitutional amendment.

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Popularity of congressional term limits

Congressional term limits refer to restrictions on the number of terms an individual may serve as a member of Congress, either in the House of Representatives or the Senate. Currently, there are no federal term limits for US Congress members, and they may serve an unlimited number of terms as long as they continue to be re-elected.

The idea of congressional term limits is popular among some reform advocates. In a September 2023 Pew Research Center survey, 87% of respondents supported term limits for members of Congress. Similarly, in a March 2023 study from the University of Maryland, 83% of respondents favoured a constitutional amendment to establish congressional term limits, with 86% of Republicans, 80% of Democrats, and 84% of Independents in agreement. Another survey of 2700 registered voters by the Program for Public Consultation (PPC) at the University of Maryland's School of Public Policy found that 83% of registered voters nationally supported a constitutional amendment to impose term limits, with 86% of Republicans, 80% of Democrats, and 84% of Independents in favour.

Proponents of congressional term limits argue that they can introduce fresh perspectives and new ideas into the political arena. Regular turnover may lead to more effective governance, as new voices can be heard, and underrepresented groups may find it easier to challenge incumbents. Advocates also believe that term limits promote democracy by preventing the entrenchment of power and encouraging political diversity. The public sentiment that career politicians can become disconnected from their constituents' needs often fuels the debate around term limits.

Opponents of congressional term limits warn that arbitrary restrictions may sacrifice experience and continuity in governance. They argue that the electoral process itself should ensure responsiveness and representation, and that limiting tenure may reduce the amount of experience in Congress without increasing its responsiveness to change.

While the idea of congressional term limits is popular, implementing it as a constitutional amendment is challenging. Since 1787, only 27 amendments have been added to the Constitution. The conventional path to amending the Constitution requires two-thirds of the House and Senate to propose language, with three-quarters of the states ratifying the amendment. The unconventional path involves calling a constitutional convention of the states, which has never been done before, and would require at least 34 states to call the convention and 38 states to ratify the amendment.

Article V convention

Article V of the U.S. Constitution gives states the power to call a convention to propose and discuss amendments that impose fiscal restraints on the federal government, limit its power and jurisdiction, and limit the terms of office for its officials and members of Congress. Article V outlines two methods to propose amendments to the nation's constitution:

• Congress, by a two-thirds vote of both chambers, may propose amendments to the states for ratification.
• On the application of the legislatures of two-thirds of the states (currently 34 out of 50 states), Article V directs that Congress "shall call a Convention for proposing Amendments."

According to the Congressional Research Service, an amendment ratified by the states under either method is constitutionally valid and carries equal force. Amendments proposed by Congress or at an Article V Convention must be ratified by the legislatures.

Every state except Hawaii has submitted an Article V petition to Congress that has passed both chambers. These petitions usually specify a topic to be considered at an Article V Convention, such as term limits for members of Congress, Supreme Court justices, and other government officials.

To pass, a concurrent resolution petitioning Congress to call an Article V Convention requires a two-thirds majority vote in both chambers. Since 1975, the Kansas Legislature has considered approximately 32 concurrent resolutions calling for a convention of states.

U.S. Senator Ted Cruz of Texas has introduced an amendment to the U.S. Constitution to impose term limits on members of Congress. The amendment would limit U.S. Senators to two six-year terms and Members of the U.S. House of Representatives to three two-year terms after its enactment.

Supreme Court precedent

The consensus among legal experts is that a constitutional amendment is necessary to impose term limits on Supreme Court justices. This is based on the Constitution's Good Behavior Clause in Article III, Section 1, which states that "the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour." Most commentators interpret this to mean that Supreme Court justices hold their positions for life, and that Congress cannot impose term limits without amending the Constitution.

However, some scholars argue that Congress may have the ability to define the content of a justice's office and lighten their duties or reassign them to lower courts without amending the Constitution. This interpretation stems from Supreme Court precedents and the belief that the Constitution grants Congress latitude to define the Court's structure and justices' duties as needed.

In the case of "U.S. Term Limits, Inc. v. Thornton" in 1995, the Supreme Court addressed state-level congressional term limits. The Court reaffirmed that the qualifications for congressional service enumerated in the Constitution are "fixed" and cannot be supplemented or altered by Congress or individual states. This precedent suggests that any attempt to impose term limits on Supreme Court justices, whether by Congress or individual states, would require a constitutional amendment.

While there is no direct Supreme Court precedent on term limits for Supreme Court justices, there is lower court precedent for barring judges with lifetime tenure from sitting. Some experts suggest that Congress could use its 'necessary and proper' authority under Article I to order that justices be reassigned to lower court cases after a certain number of years. However, the absence of specific Supreme Court precedent on this matter makes the constitutionality of such actions uncertain.

Proposals for term limits on the Supreme Court have gained traction in recent years, with some senators introducing the Supreme Court Biennial Appointments and Term Limits Act. This legislation aims to impose an 18-year term limit on Supreme Court justices and require regular appointments every two years. Supporters argue that term limits would help insulate the Court from politics, enhance its representativeness, and lower the stakes of each justice's appointment. Critics, however, warn that imposing term limits could undermine the independence of the judiciary and set a dangerous precedent for future political interference with the Court.

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State vs federal power

The question of congressional term limits in the United States has been a topic of debate for many years, with various attempts made to impose restrictions on the number of terms served by members of Congress. While there is significant public support for congressional term limits, the process of amending the Constitution is challenging and has not yet been successfully navigated.

The Tenth Amendment of the US Constitution outlines the respective powers of the federal government and the states, reserving powers to the states that are not specifically delegated to the federal government. In the context of congressional term limits, the interplay between state and federal power has been a key issue.

In the early 1990s, reformers used ballot initiatives to propose congressional term limits in 24 states, with voters in eight states approving these limits. However, the authority of states to impose such limits was questioned. The US Supreme Court addressed this issue in the 1995 case of US Term Limits, Inc. v. Thornton, ruling that states cannot unilaterally impose term limits on their federal representatives or senators. The Court's decision affirmed that any term limits on members of Congress must be enacted through a constitutional amendment, as the Constitution sets forth the criteria for these positions.

Despite this setback for proponents of congressional term limits, the Supreme Court's decision also provided guidance on the path forward. According to Article V of the Constitution, there are two ways to propose amendments: the conventional path and the unconventional path. The conventional path involves two-thirds of both houses of Congress proposing an amendment, with subsequent ratification by three-quarters of the state legislatures or state conventions. The unconventional path, which has never been used, involves two-thirds of the states calling for a constitutional convention to propose amendments, followed by ratification by three-quarters of the states.

While Congress has been reluctant to initiate the process, some states have continued to express their desire for congressional term limits. Florida, for example, has taken steps to call for a constitutional convention specifically to address this issue. Additionally, groups like US Term Limits have been advocating for an Article V convention, believing that the threat of such a convention could incentivize Congress to act.

In summary, while the states played a crucial role in initiating the discussion around congressional term limits, the Supreme Court's interpretation of federal power affirmed that any implementation of such limits requires a constitutional amendment. This shift from state to federal power highlights the complex dynamics between different levels of government in the United States and the challenges faced when attempting to bring about significant political reform.

The amendment process

The process of amending the US Constitution is outlined in Article V of the Constitution. There are two ways to propose an amendment:

• Proposal by Congress: Two-thirds of both houses of Congress must propose an amendment, which is then sent to the states for ratification.
• Proposal by State Legislatures: Two-thirds of state legislatures (34 state legislatures) can apply for a convention of states to propose an amendment. This convention would finalize the language of the amendment. Then, three-quarters of the states (38 states) must ratify the amendment for it to become part of the Constitution.

The first method is the conventional path and has been used for all 27 amendments to the Constitution since 1787. The second method, involving a convention of states, has never been used. However, it is the strategy currently being pursued by the group U.S. Term Limits, which advocates for congressional term limits.

Proposing an amendment to impose term limits on members of Congress is not a new idea. In 1997, the House of Representatives voted on a congressional term limits amendment, but it failed to reach the required two-thirds majority. More recently, Senator Ted Cruz and Representative Ralph Norman have introduced a constitutional amendment to impose term limits on members of Congress. This amendment proposes limiting US Senators to two six-year terms and Members of the House of Representatives to three two-year terms.

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