Takes on Trump v. Anderson Oral Argument 2: The Significance of Term Limits

This is another post about a small part of the U.S. Supreme Court oral argument (transcript | audio) in Trump v. Anderson. As part of Trump attorney Jonathan Mitchell’s presentation, he asserted that by banning Trump from the ballot the State of Colorado was effectively adding to the constitutional qualifications for the presidency, which a state cannot do.

In making this argument Mitchell was relying upon U.S. Term Limits, Inc., v. Thornton, 514 U.S. 779, 115 S. Ct. 1842; 131 L. Ed. 2d 881 (1995), which invalidated an Arkansas constitutional provision denying ballot access to three-term representatives and two-term senators.1  Mitchell says that U.S. Term Limits “only prohibits the states from adding additional qualifications or altering the Constitution’s qualifications for federal office. It does not purport to restrain Congress.”2

True, but the Court’s opinion in U.S. Term Limits relied heavily upon Powell v. McCormack, 395 U. S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969), in which the Court decided that “the power granted to each House in Art. I, § 5, cl. 1, to judge the ‘Qualifications of its own Members’ [does not] include[] the power to impose qualifications other than those set forth in the text of the Constitution.” U.S. Term Limits, Inc., 514 U.S. at 788.

My reading of the Constitution’s provisions establishing qualifications for members of Congress and the President is that neither Congress nor the States can add to or subtract from the qualifications.3

If that is correct, then what do we make of 18 U.S. Code § 2383 (mentioned about ten times during the argument), which makes insurrection a federal crime, specifically the end of the penalty provision which directs that an insurrectionist “shall be incapable of holding any office under the United States”?

Jay Bohn

February 22, 2024

  1. U.S. Term Limits was a 5-4 decision. The only current justice who was on the Court at the time was Justice Thomas, who wrote a dissent. ↩︎
  2. Whether Congress has that power or not is irrelevant to Mitchell’s argument. ↩︎
  3. The sole exception to that rule is Congress’ explicit power under Section 3 of the Fourteenth Amendment to remove a disqualification under that section. ↩︎