Article V of the U.S. Constitution Defines How Amendments are Passed
U.S. Term Limits is in the business of imposing term limits on elected officials at the federal, state, and local levels. Our main method for passing term limits at the federal level, as was done for presidential term limits, is to amend the U.S. Constitution.
Supporters often ask us to “put it to a vote of the people.” The truth of the matter is that there is no such thing as a national ballot initiative. We are a representative government of united states. Even the office of president is voted on through the electoral college and not directly through a popular vote of the people. Even though Congressmembers are elected by a direct vote of the people, they do not represent the nation writ large. They are elected to represent a specific geography known as a congressional district. In the case of senators, that district is a specific state and not the entire country. A person residing in Kansas does not vote for the state senator from Pennsylvania.
Not only are none of our representatives elected by a national popular vote (including the President), all of our federal laws, including those in our Constitution, are codified through representatives. When is the last time there was a vote on a particular ballot issue that affected the entire country? The answer is never. That is because the process does not exist. You may vote on state level initiatives but not on laws at the national level.
Anyone in politics can tell you that it is typically easier to pass a “statute” than an “amendment” through a local, state, or federal government. Statutes are proposed, deliberated, and passed through a legislature and then usually must also garner a stamp of approval by the administrative branch. Yes, sometimes those laws are vetoed. And sometimes the vetoes may be overruled. The point here is that it is typically quickest, easiest, and likely requires fewer additional expenditures, to pass a bill through the legislative body.
One of the problems with statutes (bills passed through the legislative branch) is that they may also be removed through the legislative branch. When a majority of the legislature and leadership want to pass a bill, it is likely to pass. Conversely, if they want to “unpass” a bill, or remove a bill from the statutes, the legislative body has the ability to do so as well. The same is true of executive orders. What may be declared may also be “undeclared.”
That is why, at U.S. Term Limits, we prefer passing an amendment to the governing body’s Constitution because it is tougher to overturn even though it is also more difficult to pass. When it comes to term limits, we have been integral in passing them through both methods, statute and constitutional amendments. We recognize that amendments are more difficult to overturn than statutes or executive orders.
We would be remiss not to address the topic of whether or not Executive Orders of the President of the United States are laws. According to the U.S. Department of Health & Human Services,
Executive Orders are issued by the White House and are used to direct the Executive Branch of the U.S. Government. Executive Orders state mandatory requirements for the Executive Branch, and have the effect of law. They are issued in relation to a law passed by Congress or based on powers granted to the President in the Constitution and must be consistent with those authorities.
The University of Massachusetts at Amherst adds this clarification,
It is not binding on everyone, only on employees of the executive branch. However, executive orders are subject to judicial review after the fact (i.e. they can be declared unconstitutional by the court).
While not every government body permits executive orders or the initiative process, many constitutions at the state level or local charters require a direct vote of the people. Sometimes, depending on the body, there are specific requirements to pass. Among these may be requiring 2/3 of the vote or, sometimes, it must pass not once but twice. That being said, the constitutional amendments at the federal level are governed by Article V of the U.S. Constitution.
Article V of the U.S. Constitution
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.
Amendments require 2 steps: Proposal and Ratification
- PROPOSAL PROCESS: Either
- 2/3 of both houses of Congress or
- 2/3 of the State Legislatures (34 states). The state legislatures must apply for a convention of states to finalize the language in preparation for the next step.
- RATIFICATION PROCESS: Once approved, 3/4 of the states (38 states) must ratify the change. This can be done either through
- 3/4 state legislatures or
- 3/4 state ratifying conventions
The Current Stage of the Process
Term limits are a non-partisan issue supported by a whopping 87% of the population. There have been strides, in both Congress and by the states, towards imposing term limits on Congress.
Article V: Proposal by Congress
“We believe that the rise of political careerism in modern Washington is a drastic departure from what the founders intended of our federal governing bodies. To effectively ‘drain the swamp,’ we believe it is past time to enact term limits for Congress.”~ Florida Governor and Former Congressmember Ron Desantis
U.S. Senator Ted Cruz of Texas (Senate Joint Resolution 2 [SJR2]) and Rep. Ralph Norman of South Carolina (House Joint Resolution 11 [HJR11]), introduced and sponsored a resolution limiting terms in office for both members of the House and the Senate. It must garner the support of 3/4 of both houses by December 2023.
A Term Limits Amendment Proposal Convention
The Term Limits Convention uses “the procedures set forth in Article V” to achieve congressional term limits. The Convention is not a state law like those the Court struck down – it is a constitutional call-to-action that triggers automatically when 34 state legislatures have demanded it. And the states don’t need the permission of Congress to propose a Constitutional amendment.
The Founders recognized that the Constitution may have flaws and would have to adapt as the country grew. As a matter of fact, George Mason refused to sign off on the Constitution because it did not include a “declaration of rights.” The first 10 amendments, now known as the “Bill of Rights,” as well as the 27 amendments that followed, were all proposed by Congress through Article V. James Madison and Alexander Hamilton wrote about the beauty of Article V, stating it made it difficult but not too difficult, to propose corrections to the Constitution. Madison, Hamilton, and Mason felt strongly that both the federal government and the state legislatures should have equal power to propose amendments, therefore, the “convention of states” option was important for them to include.
It is our belief, at U.S. Term Limits, that the imminence of a national convention to propose term limits on Congress will “inspire” Congress to preempt the convention. Congress will never let the state lawmakers dictate congressional terms. Congress understands that state lawmakers would be incentivized to propose term limits most conducive to creating job openings for themselves. Rather than allow states to decide its fate, Congress will step out in front of the convention effort and propose a term limits amendment itself.
Article V: Proposal by State Convention
More than 500 applications have been made by the states asking for an Article V Convention on various topics. To date, a proposal convention of states has never been called. However, 3/4s of the states in convention did ratify the repeal of the prohibition amendment in 1933. Currently, the Article V movement with the most traction is the Balanced Budget Amendment which needs only a few more states in order for Congress to call an Article V Convention. Nineteen states have passed Article V convention applications for a limited government that includes imposition of term limits on Congress. In total, nine states have passed the term limits exclusive application, WV, FL, MO, AL, WI, TN, LA, NC, and OK (updated 12/2/2024).
For the latest on our progress, please visit termlimits.com/progress.