Term limits on the basis of age? Tricky

USA Today has run a seriously hot take on the issue of term limits and public service from author and former police officer Marshall Frank. He’s turning 80 this year and wants to share a bit of perspective with you on the subject of both elected officials and Supreme Court justices. The long and the short of it is that at some point you’re simply too old to be entrusted with these responsibilities and we need to set limits on how long people can continue in public service.

I am turning 80 this month. I don’t care if I were the smartest politician in government and/or could still climb mountains — I would have no business being a president of the United States, a Supreme Court justice or a member of Congress at this age.

I feel in good shape, but I definitely have far less physical and mental stamina than I had 10 or 20 years ago, no matter how I try to fake it. While there may be exceptions, that’s the norm.

Of course, some lucky people are one-up in the genes, but the wear and tear of years on the mind and body have an effect on everyone and should not be risked in critical positions of power that affect all Americans. No offense to seniors, but it is important that our government employ the fittest and finest among our citizenry.

Well, this conversation is definitely veering into some dangerous territory, isn’t it? I’ll just start by saying that I tend to be sympathetic to what Frank is saying, at least in general terms. He’s got two decades on me, but I can attest that even reaching 60 years can take a toll on you. I too have noticed that I’m not only far from peak physical performance, but my mental acuity has already started to slip at times. Of course, I come from a family where that seems to run in our genes and others are no doubt far less affected. But given the differences between individuals when considering this question, is there a point where you’re simply “too old” to do the very important jobs in question? (Frank is talking about presidents, members of Congress and Supreme Court justices for the most part.)

One initial response many may have is that this can’t be constitutional, right? I mean, it would be age-based discrimination, wouldn’t it? But the fact is that the Constitution has some of that baked right into the cake. There are plenty of otherwise qualified, legal adults out there who are barred from being elected to the Senate or the Presidency. Granted, those are minimum age limits, but there’s nothing that specifically prohibits maximum age standards in every case.

The military rejects older applicants based on age all the time, though they allow themselves the option to make exceptions in special cases. You can’t join the Army (for the first time) if you are older than 35. It sounds to me like you’d need a constitutional amendment to establish a maximum age for federal offices, but I’m not entirely sure that a law doing so would fail under challenge.

If such a thing were to magically happen overnight, the immediate impact would be drastic. If the cap is set at 80, Ginsberg and Breyer would have to be shown the door immediately. But even if you’re a conservative, don’t cheer too loudly. Thomas and Alito would be the next two to go. If Joe Biden or Bernie Sanders are elected next year, neither of them could finish their first term. (Unless we’re only setting the maximum age when you are elected.) Either way, neither of them could run for a second term.

If we applied the rule to the Senate, five members would be out immediately. (Four Republicans and one Democrat.) Nine members of the House would have to go as well, though mostly Democrats. The point is, some people are still viable (if not the “fittest and finest” as Frank says) very late in life. Others may be of more questionable mental stability or acuity while still in their prime. Could Frank’s plan be legally put into place? Probably… particularly if we managed to pass a couple of Constitutional amendments. Should we do it? I think we’re on morally shaky ground there. The best method of enforcing term limits remains the voters. If we can put up with an old geezer doing an important job, then we’ve got what we asked for.