In his first few weeks in office, President Trump gave little cause for comfort to those concerned about the growth of presidential power during the Bush and Obama administrations. Notice that I said “little cause,” rather than “no cause whatsoever.” There is one thing that should interest everyone: in his plan for his first 100 days in office, Trump announced his intention to propose “a constitutional amendment that would impose term limits on all members of Congress,” and bills were introduced in the House and Senate that would make such an amendment possible.
Except for some high crime or misdemeanor leading to presidential impeachment and removal from office, congressional term limits could be the most effective means of limiting presidential power. Yes, you read that right: legislative term limits could stem the tide of executive mission creep.
The incentive structure of the federal government needs adjusting. The Constitution’s “checks and balances” that American school children (hopefully) learn about in civics class sometimes look all-too-little like the actual political goings-on of the three branches of the federal government. While 70-90 percent of members of the House of Representatives are reelected each term,i Congress also seems to have delegated (or forfeited) many of its powers to the president.
Most concerning is the atrophy of congressional war powers; although the Constitution clearly authorizes Congress to declare war (Article I, Section 8), it has for many years taken a back seat to the executive. Why risk taking responsibility for making decisions regarding war or some contested social issue if it will harm your chances at reelection? Full congressional use of its own constitutional authority requires making congressmen less fearful of losing an election and more inclined to stand up to the executive. In brief, term limits tend to make legislators willing to follow their conscience instead of giving slavish devotion to constituents.ii
Congress looks little like the legislative body envisioned by James Madison and Alexander Hamilton in the Federalist Papers. Madison urged in Federalist 48 the necessity of limiting the power of the legislature due to its tendency to draw “all power into its impetuous vortex.” (If the legislature needed weakening, the executive needed augmentation; in Federalist 73, Hamilton argued for the necessity of an “energetic executive” to, among other things, counteract the power of the legislature.)
Madison and Hamilton’s vision is outdated. The framers of the Constitution assumed that legislators would always want to have power more than they wanted to stay in office. Even if their vision of the federal government held for much of American history, it doesn’t anymore. In other words, it is no longer true that congressional ambition results in lust for decision-making power. Instead, the predominant motivation is the desire to stay in office.iii
Federalist 51 famously speaks of the necessity of giving to each branch the necessary constitutional authority to resist the encroachments of the other branches. To do this, “ambition must be made to counteract ambition.” Congress suffers from misdirected ambition, and term limits could free congress from a slavish devotion to reelection and give them over to a salutary desire for its own constitutional powers.
Notice what this means about the practical results of term limits: more conflict between the Congress and the presidency. This is significant. One common objection to congressional term limits by political scientists and other commentators is that term limits would not do anything to make congressmen more responsive to their constituents.iv But this misses the whole point. The desirability of congressional term limits lies in their ability to make legislators less responsive to their voters. Being somewhat insulated from voters will make it easier for congressmen to stand up to the president. And only by being assured that soon they will be going out of office will they be willing to make controversial votes or other decisions. In brief, as long one does not measure the success of Congress according to the standard of being as responsive as possible to the immediate preferences of constituents but instead according to the need to balance institutional ambition for the sake of preservation of individual liberty, then the first objection proves unpersuasive.
A second common objection is that term limits at the state level may actually increase the power of executive branch officials – especially bureaucrats. This, of course, is much more intuitive than the position presented here, but rather than being a case-closing blow for term limits, it seems more reasonable to call instead for something like term limitation for bureaucrats and various executive branch officials.
There are, of course, other arguments for and against term limits, but one unsung benefit is that congressional term limits could serve to limit the power of the presidency (just don’t tell that to President Trump).
i Jacobson, The Politics of Congressional Elections, 247.
ii Gary C. Jacobson, The Politics of Congressional Elections, 6th edition (New York: Pearson, 2004), 23-26.
iii John M. Carey, et. al., “The Effects of Term Limits on State Legislatures: A New Survey of the 50 States,” Legislative Studies Quarterly Vol. 31, No. 1, 105-134.
iv The classic statement of this claim in modern political science scholarship is David R. Mayhew, Congress: The Electoral Connection (New Haven and London: Yale University Press, 1974).