Republican Presidential candidate Nikki Haley has an “age” problem, as reflected in the hallmark of her campaign for the GOP nomination: mental competency testing for all aspirants for all candidates for federal elective positions: president, vice president, and members of Congress.
The core of her signature theme of youth versus age, the 51-year-old candidate’s proposal is beset with practical and legal obstacles. While her initiative addresses the why, because elderly politicians may be less mentally competent, it fails to address additional vexing issues: What kind of testing, who conducts and evaluates the examinations, when it’s to be administered, where it takes place and how the results would be used.
Haley also has advanced other ways that would negatively impact the elderly, including raising eligibility for Social Security to some unspecified age as well as cutting those benefits as well as Medicare for some wealthy elderly folks.
Senior Senators
Haley’s age-based testing comes at an opportune time. While the average age of members of the House of Representatives has been gradually descending, now at 58, the current Senate is the oldest ever, with an average age of slightly above 65 years old, including 23 of them who are 70 or older and seven above 80, headed by the ailing 89-year-old Democrat, Dianne Feinstein of California and a much more spry 89-year-old Iowa Republican Charles Grassley not far behind among its senior set.
The second oldest candidate for president, former President Trump, 25 years Haley’s senior, weighed-in with his own proposal. Seeking to top his younger rival, a week after she entered the race with her call for competency exams, he proposed mental and physical testing of all presidential aspirants. But the practical problems and political plot lines inherent in any cognitive or other testing proposition may make it a non-starter.
The proposed mandate would require amending the Constitution for federal officeholders by majority vote in each chamber of Congress, where a number of codgers over or approaching the Haley threshold hold sway, and then approval by legislatures in 38 states, no easy feat, as reflected in the ongoing saga of the proposed 28th Amendment, the Equal Rights Amendment, which has been lingering for 51 years and currently the subject of a pair of federal court lawsuits regarding belated rectifications by three states – and rescission by five others – after 35 states promptly approved it, including Minnesota, but then none did for decades.
Constitutional conditions
The Constitution prescribes the exclusive requirements for elected federal office holders. There conditions are three for the presidency (and vice presidency, too): 35 years of age, natural born citizenship, and 14 years residency in the country. Senators are, according to the Constitution, subject to three qualifications: 30 years of age (Biden was elected at age 29 in 1972, but turned 30 before being sworn in two months later), nine years of U. S. citizenship, and residence in the state where elected; while members of the House of Representatives can be younger, 25 years old, a U. S. citizen for seven years, and a resident of the state, but not necessarily the district represented.
The courts have ruled that these Constitutional eligibility provisions are exclusive and may not be supplemented by other requirements. Those cases include a 1995 decision by the U.S. Supreme Court barring state-prescribed term limits for members of the House in U.S. Term Limits, Inc. v. Thornton, as well as a California Supreme Court ruling in 2019 in Padilla v. Trump prohibiting adding a new eligibility provision for president, public disclosure of tax returns.
Incidentally, in Minnesota, the state constitution prescribes for governor and (lieutenant governor) a trio of requirements: 25 years of age, U.S. citizenship, and a year of residence in the state; while legislators in both state chambers must be 21, a qualified voter, and a state resident for a year.
Legalisms aside, Haley’s acuity initiative for elderly candidates seems to have some popularity with the public, as Banks notes in pointing to a Fox News polls shortly after Haley jumped into the race three months ago reflecting 80% approval of the concept. In addition to voter appeal, it may even have some merit, too, a pair of features that are not always synonyms.
Indeed, back in 2016, following some aberrant behavior by candidate Trump during the campaign, a trial balloon was floated in the media by at least one observer, me, for mental competency testing for presidential candidates. The balloon turned out to consist of hot air and led nowhere … until now.
But Haley’s proposal is both more narrow – limited to 75-plus individuals, and broader – all federal office seekers.
Intriguing idea
Despite its shortcomings, Haley’s testing proposition is an intriguing idea that may warrant more scrutiny than derision. Haley’s proposal raises a number of other questions, like if acceptable, should it apply to all public officeholders. If implemented at the federal level and effective in weeding out idiots and numbskulls from the nation’s capital, it could spread like wildfire to those other positions.
If it’s prudent to test the cognitive competence of candidates beseeching those casting ballots to support them, why not extend that probing to the voters themselves? The same goes for campaign donors, at least large-scale ones, who could be required to certify as to their mental competence before their checks are cashed.
Haney and hailed
Haley’s youth versus age campaign is hardly the first of its kind. In 1960, it was a signature issue in the presidential campaign, with Republicans and others raising concerns over the youthfulness of John F. Kennedy at age 43, four years younger than the GOP candidate Richard Nixon. When JFK won, he became the youngest elected president, a year older than Theodore Roosevelt, who was 42 when he ascended from the vice presidency upon the assassination of President William McKinley in 1901. The youthful, vigorous JFK hailed in his inaugural address the “new generation of leadership” wrought by his incoming administration.
Hovering in single digits in the polls, Haley is unlikely to get the Republican nomination and, having implicitly derided the party’s probable nominee, the 76-year-old former President Trump (as well as 80-year-old incumbent President Biden), and not well-positioned to be dejected as a vice presidential nominee of the party.
But she may well be back in the race for the White House in 2028.
She’ll only be 56 then.
Marshall H. Tanick is a Twin Cities Constitutional and employment law attorney.
