Is there another way to put an age limit to Congress members without making a constitutional amendment in the U.S.?

Question

Forbes' political staffer Sara Dorn writes, "Instilling age- and term-limits is also a logistically complicated process that would likely require a constitutional amendment, which would need either the votes of two-thirds of both the Senate and the House, followed by approval from three-fourths of state legislatures, or a request from two-thirds of states followed by a constitutional convention in which three-fourths of states must ratify the amendment."

https://www.forbes.com/sites/sheilacallaham/2023/09/30/put-aside-rhetoric-about-the-late-sen-dianne-feinstein-and-focus-on-what-matters/?sh=3fb96b5a5a09

Is there another way to put an age limit to Congress members without making a constitutional amendment in the U.S.? The article states that instilling an age limit would likely require a constitutional amendment, but the article use the word likely implying that it there are or could be other ways to put an age limit without a constitutional amendment. What are or is the other option(s)?

Answer 1

Both houses of Congress have the unreviewable power to expel members if 2/3rds of the members vote in favor. Both houses could implement a de facto age/term limit if 2/3rds of the members compact to vote in favor of removing any other members who are over their chosen limit.

Another option would be to exclude members over a certain age from any committees by the chamber rules. While SCOTUS has generally found that Congressional chambers' rules are unreviewable, the Constitution specifically requires that bills and other official actions are voted on by certain percentages of each chamber's members and that a congressperson cannot be stopped from going into their chamber to vote on a bill. While I do not think it has ever been tried and therefore ruled on, if a chamber tried to amend its rules to stop age/term limited members from voting on bills sent to the full vote it would seem to fail the Constitutional process to pass a bill and therefore not be a valid bill. However, if the bill still got 51% of the total vote of the chamber even without those members, there could be an argument it could still be considered passed.

SCOTUS has ruled on a similar issue of excluding a member by majority rather than expelling them by 2/3rds vote in Powell v. McCormick (1969), which does suggest that a change to chamber rules by majority vote is not sufficient to stop any Constitutionally qualified and elected member from voting.

Unquestionably, Congress has an interest in preserving its institutional integrity, but, in most cases, that interest can be sufficiently safeguarded by the exercise of its power to punish its members for disorderly behavior and, in extreme cases, to expel a member with the concurrence of two-thirds. In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.

For these reasons, we have concluded that Art. I, § 5, is, at most, a "textually demonstrable commitment" to Congress to judge only the qualifications expressly set forth in the Constitution.

However, the court in this case did not consider whether it had any coercive power over the House on this issue, since it decided it the issue of Powell being allowed into the 90th Congress was moot due to that session being over and the new 91st Congress being in session; therefore it limited the scope to adjudicating a declaratory judgement that his right to be a member of the 90th Congress had been violated for back pay purposes.

Answer 2

Question: Is there another way to put an age limit to Congress members without making a constitutional amendment in the U.S.?

There already are age limits in the Constitution for both the Congress and Senate. Only their floors, not ceilings. For Congress, the age floor is 25. For the U.S. Senate, the age floor is 30. If we rule out the illegal and impossible, illegally murdering politicians when they turn 65 years of age and the impossibility of getting a 2/3rds majority in either house to enforce some internal congressional or senatorial restriction, then the answer is no. The Constitution is the highest law of the land. Given it already deals with age limits and has no ceiling, one could say the Constitution and precedent grant individuals the right to serve into their 100s as Strom Thurmond of SC did.

A state could try to limit the congressional and senatorial candidates by age. A patchwork approach. But I think this would also be chalked up to impossible. It could be challenged in court, precedent is on the candidate's side. But what makes this impossible is, that every politician voting on the bill will someday be old, so it's not in their self-interest to support such a move. To say nothing about the political clout and contacts a senior politician could bring to their own defense if such an approach were tried.

I guess we should never rule out the impossible though, given this supreme court anything is possible.

Answer 3

Any prohibition outside of what the Constitution specifically mandates may, itself, be seen as being unconstitutional.

You're asking for some kind of disqualification related to a particular form of impairment, known as "senescence", confusing it with "chronological age" and being overly-generalizing because of that, while at the same time being too specific (and in the moment, or topical), where actually you should be asking about disqualifications related to any form of impairment.

There is something along those lines, already, for the President: the 25th Amendment, sections 3 and 4. The gap you're calling out is that there is nothing analogous to this which applies to members of Congress, to the Judiciary or even to the Vice-President. That's a gap in the Constitution, not in the laws themselves, and has to be resolved there: an expansion of "Amendment 25" to cover all the other positions just mentioned.

Congress is effectively covered already, in a weaker sense: members can be expelled. But the grounds for the action - Article I, Section 5, Clause 2 - only applies to punishing misbehavior, not dealing with impairment. That's a gap.

Similarly, members in the judicial branch - as well as the President or Vice President - can be removed under Article II, Section 4, and have been, in the case of the judicial branch. But, this is also only a punitive action, not something for impairment. So, there's a gap there, too.