I blogged last month about the Tennessee Senate committee’s decision to advance a bill adding a multi-year residency requirement to congressional candidates. The bill’s gone through some machinations since then in the two houses about what the residency requirement looks like, but similar (not identical) bills have passed both chambers with significant bipartisan support–that is, nearly unanimous support.
One proponent of the legislation, I noted in my original blog post, pressed for overturning U.S. Term Limits v. Thornton, the Supreme Court’s 1995 decision holding that the qualifications enumerated in the Constitution are exclusive and that states lack any power under the Constitution to add qualifications. The legislator cited Justice Thomas’s dissenting opinions, joined by Justice Scalia (among others), as a basis for pressing forward with the new law.
A recent interview with another legislator has the same line:
Leahy: The state of Arkansas passed a statute that said three years and three terms, and you can’t run again. The Supreme Court ruled five to four, that that law in Arkansas was unconstitutional.
However, the dissent was written by Clarence Thomas, agreed to by Scalia. I think you’re going to go and say the current court would say probably would agree with Thomas in that dissent. Your thoughts.
Griffey: Exactly. The Constitution didn’t abate it by the state. So if we want to enact residency requirements, I think the dissent back then would have allowed it, and I think the current court may allow it.
There are several dimensions to consider here.
First, it’s clear that Republicans in Tennessee are targeting a disfavored candidate who has the endorsement of former President Donald Trump. From the Tennesseean:
The Senate version could particularly target Morgan Ortagus, a Florida native and former State Department spokesperson who announced her candidacy for the district after moving to Nashville in 2021. Ortagus received an early endorsement from former President Donald Trump.
Second, while there’s a partisan valence to this specific situation, the position has attracted wide bipartisan support in Tennessee. There is nearly unanimous support to stop “carpetbaggers” from getting elected to Congress (because the Constitution only requires one to be an “inhabitant” of the state “when elected”). That’s also a bit different from the 90s and the context of Term Limits, where term limits were principally a conservative cause (albeit with strong public support).
Third, overturning Term Limits would harm Republicans in many states. Democrats have aggressively (in my judgment) moved to add qualifications to presidential candidates by requiring them to disclose their tax returns as a condition of ballot access, or Democratic-affiliated challengers have sought to require proof that candidates are not insurrectionists today rather than when they present their credentials to Congress. (Indeed, the North Carolina Republican Party has an amicus brief in the Madison Cawthorn litigation strongly endorsing a philosophy that states may not add qualifications nor enforce them.)
Fourth, the language that Tennessee legislators are using (at least, those on the record about it) are conservative Republicans invoking the opinion of Justice Thomas (joined by Justice Scalia), and the notion that a majority of the Court would be willing to revisit this precedent.
Term Limits is interesting to consider in terms of the “settled”-ness of precedent. Its majority is not often cited in Supreme Court decisions and is more commonly cited in dissent or in conjunction with Justice Thomas’s dissenting opinion. Justice Thomas’s opinion (or Justice Kennedy’s concurring opinion) are often cited elsewhere.
Then again, Justice Thomas’s view has attracted increasingly few adherents in recent years. In related election cases, he has propounded the view that the Elections Clause creates a state duty and does not create state power, and state power arose elsewhere (e.g., confirmed by the Tenth Amendment). This is in contrast to the view of Justice Story, who viewed the Elections Clause as creating state power over federal elections, because states lacked any power over federal elections prior to the Constitution (as federal elections did not exist) and could only act pursuant to some enumerated constitutional grant of power.
I think Justice Story’s view is the correct one. And even in subsequent elections cases, Justice Thomas has written separately to advocate for his views (in Chiafalo and Arizona v. Inter Tribal Council, among others), with few others joining him. (Justice Gorsuch did join the Tenth Amendment provision in Chiafalo–and the Tenth Amendment did appear to have some supporters, including Justice Kavanaugh, at oral argument in Chiafalo, but those never really materialized.)
In other words, it’s not clear how much appetite there is on the Court to advance this view. Granted, what happened in adjacent cases doesn’t say much about what happens if presented squarely with a congressional qualifications case. But there’s some suggestion that while it’s not as entrenched a precedent (that is, it’s not really relied upon very much in other election-related cases), Justice Thomas’s views haven’t really been picked up on, either.
The only other hint we have is from Justice Gorsuch’s scholarly work on the topic. He defended term limits in a law review article where he offered a method of distinguishing between “manner” and “qualifications” rules with some ad hoc balancing factors (including “judicial considerations,” which he argued makes “good sense” to a “legal realist,” and “invidious potential,” with an examination of the state’s proffered interests), and which weighed against finding that term limits were additional qualifications. I didn’t find this approach particular persuasive, and it’s not clear he’d adhere to it, anyway.
In short, there are lots of open questions if the Court is asked to revisit Term Limits. Procedurally, if Tennessee goes through with this law, it will be promptly challenged, then held promptly unconstitutional by a district court judge and the Sixth Circuit. The Supreme Court may not grant certiorari unless Tennessee can find four justices interested in taking up the case; even then, it still takes five votes to win. And while the Court may have more “conservatives” on it, as proponents openly suggested when promoting this bill, it remains unclear that the path forward will result in the demise of Term Limits.
But doing so would dramatically increase the ability of states to affect congressional candidacies in the years to come. Term limits were one idea, but opening the door to extensive residency rules, tax return disclosures, anti-insurrectionist showings, and the like could significantly upend federal elections in the future. But that’s only if the Court is willing to revisit this precedent.