In the ‘90s, attempts to establish term limits for members of Congress failed. Today, Democrats are seeking to use criminal law to impose a one-term limit on former President Donald Trump. The reasons for the demise of congressional term limits demonstrate why the Democrats will be unsuccessful.
For obvious structural reasons, a federal constitutional amendment was never able to make it through Congress to be ratified by the states. Alternatively, 23 states took it upon themselves to limit the number of terms served by the members of their respective delegations. Arkansas was one such state and passed Amendment 73 to the Arkansas Constitution, prohibiting otherwise eligible candidates for Congress from appearing on the ballot if they had already served three terms in the House or two terms in the Senate.
A challenge to this law made its way to the U.S. Supreme Court in the 1995 case U.S. Term Limits Inc. v. Thornton. The court’s 5-4 decision held the term limit provision to be unconstitutional, explaining that the Constitution provides the requirements for congressional service and that “states have no authority ‘to change, add to, or diminish’” those requirements. Notably, Justice Clarence Thomas wrote for the minority, stating that as the Constitution does not specifically say that states have no such authority, it was not for the court to decide for Arkansans who was eligible to represent them.
Twenty-three states’ term limits were thus overturned by a razor-thin decision authored by Justice John Paul Stevens. How does this help Trump? The U.S. Term Limits decision relied upon a 1969 case, Powell v. McCormack. In that case, the scandal-prone Rep. Adam Clayton Powell had played fast and loose with congressional travel funds and put his wife on the payroll for a no-show job. When he was reelected anyway, the House leadership passed a resolution forbidding him from taking his seat.
Powell challenged this action. The Supreme Court held 8-1 that the Constitution provides the requirements for service in Congress and that not even Congress itself can add to those requirements. Congress retains the ability to expel a member under Article 1, Section 5, but exclusion is not the same as expulsion. Therefore, Congress was required to seat Rep. Powell.
In the wake of the FBI raid on Trump’s Mar-a-Lago residence, many pundits have pointed to a possible motive for law enforcement’s investigation of the once and potentially future president. The Presidential Records Act forbids an officer of the U.S. from “willfully and unlawfully conceal(ing)” or “destroy(ing)” covered documents. Media speculation to date has centered on the FBI seeking documents allegedly removed and concealed by Trump that are relevant to the Jan. 6, 2021, riot at the Capitol. The law establishes “disqualifi(cation) from holding any office under the United States” as a mandatory punishment for violations of the act.
But in essence, this places a new requirement for holding the office of president. In addition to age and citizenship qualifications, presidents would now be required to have a clean record with respect to violations of the Presidential Records Act. The precedents in U.S. Term Limits and Powell make it almost unthinkable that the Roberts court would uphold a finding of disqualification, were Trump to be charged and convicted of violating that law.
President Andrew Jackson famously killed many men, legally and extralegally. President Abraham Lincoln ordered people arrested and held without trial. President Warren Harding exhibited levels of corruption that stagger the mind. Each one of them was constitutionally eligible to run for reelection. Surely, President Donald Trump is too.
Jason Reese is an attorney in Oklahoma.
