Term Limits for the Swamp

By Larry Huss,

With the overwhelming win by President Donald Trump (Rep) and the sweep of Republicans in both houses of Congress, and the promise to Clean the Swamp, new calls have been forthcoming about term limits for members of Congress. While I agree with the whole concept of term limits I also recognize the near impossibility of achieving it.

The requirements for becoming a Member of Congress and/or a United States Senator as set forth in the United States Constitution.. Article I, Section 2, Clause 2 states:

“No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”

Similarly, Article I, provides the qualifications for a United States Senator:

“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”

The primary difference being age and years as a United States citizen.

According to Constitution Annotated noted:

“Article I, Section 2, Clause 2:

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

“In 1969, the Supreme Court established in Powell v. McCormack that Congress may not consider qualifications other than those set forth in the Constitution when judging whether Members-elect qualified for Congress pursuant to Article I, Section 5, Clause 1. In 1995, the Supreme Court in U.S. Term Limits, Inc. v. Thornton extended its findings in Powell to prohibit states from imposing qualification requirements on congressional membership.

“The Supreme Court’s Thornton holding was consistent with long-established congressional practice not to weigh state-added qualifications when considering whether a Member-elect qualified for a congressional seat. For instance, in 1807, the House seated a Member-elect although he was in violation of a state law requiring Members of Congress to have resided in their congressional districts for at least twelve months, the House resolving that the state requirement was unconstitutional.“ [Emphasis provided.]

Because those decisions are based on the clear meaning of the language in the United States Constitution, they can only be altered by a constitutional amendment – a complex and daunting task requiring a two-thirds vote of both house of Congress and a subsequent ratification of three-fourths of the State legislatures*. Because all of this begins with a super-majority of both houses of Congress, it is hard to imagine that you can convince members to give up their gravy train. It is the moral equivalent of expecting welfare recipients to give up their weekly stipends.**

And for those of you who think that presenting the issue to the United States Supreme Court might result in a different outcome, you haven’t read the Court very well. The six to three majority are all conservatives with at least five being “originalists.” That means that they interpret the Constitution in light of the original meaning of the Founders – and not based on how badly subsequent politicians have distorted the concept of constitutional restraint. The chance that Justices Thomas, Alito, Kavanaugh, Gorsuch and Coney-Barrett would change the current precedence is virtually nil. You can add Chief Justice Roberts not because he is an originalist but because of his belief in precedence – and maybe even Justice Kagan.

But take heart. The concept of term limits is alive and well and can be imposed with Constitutional change albeit with a small change in direction. And quite frankly given the current state of affairs with the deep state it may be even more beneficial.

Some years ago some wag suggested that there should be term limits for bureaucrats. His tongue-in-cheek rationale was because these government bureaucrats were the “smartest people” in the nation – they knew more than the people running businesses despite the fact that many had tried and failed to get jobs in those businesses. That brilliance would be invaluable to American business and industry. These bureaucrats are so well educated and trained that they would not have any problem finding employment outside of government – and with wages greatly in excess of what the federal government pays. It was suggested that each bureaucrat should be “term limited” after seven years so that they would go out and share that experience and capability. They could not, thereafter, re-enter employment by the federal government. Members of the military were exempt from the term limits.

And while the suggestion was made in jest, the fact is that it has a real benefits when you see how much of our lives that these unelected, unaccountable bureaucrats impact. The biggest benefit from terms limits would be that the federal bureaucracy would be “self-cleaning” and those, like Anthony Fauci, who build kingdoms within the bureaucracy would be ousted routinely. But let me make some suggestions:

1. Given that most of the bureaucrats are found in the Executive Branch of government, most of the changes could be accomplished by Executive Order of the President.

2. There would probably be “bargaining rights” from the public employee unions that would be need to be addressed during the next bargaining session. A strike is always an opportunity to do some “house cleaning” and imposition of term limits might actually be accelerated as a result of the strike.

3. There should be a limitation on employees impacted. A large number of public employees are in “clerical” positions and are not a part of the Deep State. Term limits for bureaucrats should be limited to those who empowered as “decision makers” – those who craft the rules, those who have discretion as to their enforcement and those who craft “reports” upon which regulations are based.

Implementation of such a “term limits” plan will have the ancillary effect of forcing Congress to start sharpening the focus of legislation. Currently Congress uses “targeted” legislation in which its gives an agency a general charge to “go out and do good” without any guardrails. In doing so Congress has allowed itself to bask in the virtue of doing good while escaping blame for the damage that is done when a good idea turns bad in the real world. It’s always surprising how better decision making is when you own both the idea and the implementation. There are members of Congress who cannot live with that kind of responsibility and who will term limit themselves in light of that. There is nothing wrong with Congress or its processes. What is wrong with it is the members of Congress.

And finally, executive action should be followed by Congressional legislation so that the Deep State is not recreated the next time the Democrats are in charge. In life, we are expected to be responsible for our actions and inactions. Congress and the Deep State should be also.

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*It is also possible to effect an amendment to the Constitution through a “constitutional convention” but such a process is so fraught with danger from existing and competing lobbying and special interest groups that no sane person would venture down that path.

** In point of fact, there are any number of the members of Congress who could wind up on the welfare rolls under term limits given that they never accomplished anything as Members.