Congressional Term-Limits Towards A 28th Amendment?

Hung Huynh is a first-year student at American University Washington College of Law. She is interested in French law and American law. Her first book, “Forever and Always A Girl,” a non-law related book, explores the theme of personal freedom and womanhood. Softcover, ISBN. 9798210521217.

House Joint Resolution 20, recently introduced on January 12, 2023, proposes a 28^th Amendment to the Constitution limiting the service terms for Congressional representees to six consecutive terms (12 years) for House Representatives, and two terms (12 years) for House Senators.[1] Currently, House Representatives and Senators can be reelected indefinitely after serving their terms. This proposition involves the ongoing issue of congressional term limits of over 30 years.[2] Congressional term limit allows a constant shakeup in Congress, permits them to judge independently by avoiding them from being too emmeshed in the federal culture and insulated from the general American people, by giving them a much-needed reality check.[3] House Joint Resolution 20 is the latest effort to make Congress accountable. Shall it succeed? Such is the question of our discussion.

Oppositions to congressional term limit come mainly from incumbents and special-interest groups. They form PACs and super PACs, entities who use the current system to pander to Congress members through exorbitant donations in exchange for advancing their policies at the detriment of the American people.[4] They also inadvertently or deliberately exclude the entrance of outside challengers who may have policies but not the politics.

The most daunting hurdle to setting a congressional term limit, however, is the Constitution. The Supreme Court already first treated congressional term limits in U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), a 5-4 decision with dissents from Justices Rehnquist, O’Connor, Scalia, and Thomas. At the center are the “qualifications” and “times, places, and manner” clauses of the Constitution.[5] The Court interpreted these “qualifications” as fixed, and are controlled by the Elections Clause in Art. I, § 4, cl. 1, to regulate the “Times, Places and Manner of holding Elections,⁴” namely “age”, “citizenship”, and “state residency” requirements.[6]^,[7] This rendered unconstitutional state-imposed limits on federally elected congressional members.

Thornton did not close the door for congressional term limits; it rerouted this possibility through a constitutional amendment.[8] This is the path chosen in Resolution 20. After all, the 22^nd Amendment entrenched the power of the most important executive role in the government by limiting presidential service time to two terms of four years. An amendment seems logical, however, this branch of thinking also opens to the idea of term limit for Supreme Justices. It is certainly another question for debate; yet, given the number of Congress members (435 in the House of Representatives and 100 in the Senate) versus the number of Justices (9) and the qualifications of Justices to interpret the laws, congressional term limits seem pressing.

House Joint Resolution 20 is promising, however, saying that it will receive major support is an overstatement. After all, other propositions in the same legislative session this year propose 3 terms for Representatives and 2 terms for senatorial seats.[9] The numbers seem arbitrary, and Resolution 20 fails to prove why it is the best. Another issue is that even if the Amendment is successful, it does not preclude future governments from amending it again.[10] In other words, House Joint Resolution 20 might just be defeated by other new propositions, offering no explanations why it is the best to amend the Constitution on the issue.[11]

The question remains is whether it is constitutional to impose this term limit to all States since no State has the power to legislate for another State. While the answer might be a no here, Justice Neil Gorsuch, then a recent law graduate from Harvard Law School, co-wrote an opinion paper with fellow graduate Michael Guzman, now a partner at Kellogg Hansen P.L.L.C., where they defended the state-imposed terms limitations and argued that such measure was constitutional.[12] With Gorsuch now on the Supreme Court and the composite of the Court favorable to certain entrenchment in the Constitution for the cleanness of the government, will Thornton be revisited in another case if a 28^th Amendment will not be ratified? This is a question that we will find out in the upcoming legislative session this 2023.

[1] H. J. Res. 20, 118th Cong., 1st Sess. (Wis. 2023).

[2] Dan Greenberg, Term Limits: The Only Way to Clean Up Congress, Backgrounder, The Heritage Foundation. August 10, 1994, https://www.heritage.org/political-process/report/term-limits-the-only-way-clean-congress

[3] Id. at 5-7.

[4] Id.

[5] U.S. Term Limits v. Thornton, 514 U.S. 779, 780 (1995).

[6] U.S. Const. art. I, § 2, cl. 1; § 4, cl. 1; § 6; § 5, cl. 1.

[7] ^“The actual Enumeration shall be made within three Years (…) within every subsequent Term of ten Years, in such Manner as they shall by Law direct”. US Const. Art. I, § 2.

[8] Thornton at 781.

[9] H. J. Res. 11, 118th Cong., 1st Sess. (S.C. 2023).

[10] Ohio Life Ins. & Trust Co. v. Debolt, 57 U.S. 416, 431 (1853) (holding legislative power cannot be entrenched in the U.S. to disarm successors.)

[11] See, e.g., Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 Yale L. J. 1665, 1671-72 (2002).

[12] Neil Gorsuch & Michael Guzman, Will the Gentlemen Please Yield? –A Defense of the Constitutionality of State‐​Imposed Term Limitations, Policy Analysis No. 178, Sept. 24, 1992.