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HENNIKER, N.H. — Florida Gov. Ron DeSantis set himself a high bar in a Jan. 16 town hall while campaigning for the Republican presidential nomination. He mentioned three policies he’d like to implement that current Supreme Court jurisprudence frowns upon.
In the town hall aired on CNN at New England College, DeSantis endorsed these policies:
DeSantis said he’s "in favor of term limits for members of Congress, because their No. 1 priority is to stay in office for 30 to 40 years. That's not the right incentive."
He said he thinks the president "should have a line-item veto. That means you can have a budget bill on your desk, and you can veto individual pork-barrel items or any item you want, without having to veto the entire spending bill."
And he said that if someone crosses the U.S. border without prior authorization, "Why shouldn’t the state authorities or the local sheriff be able to just deport them back across the border?"
The answer, in all three cases, is that the Supreme Court has said the law prohibits it.
On congressional term limits, the justices ruled in 1995 that states cannot set qualifications for members of Congress beyond what the Constitution specifies. These provisos include being at least 25 years old and a citizen for seven years for the House and being at least 30 and a citizen for nine years for the Senate. In both chambers, members must also live in the state they are elected from.
On the line-item veto — a power afforded to governors in the vast majority of states — the U.S. Supreme Court nixed the idea in a 1998 decision. The justices ruled 6-3 that a presidential partial veto violated the part of the Constitution that says both congressional chambers and the president must approve identical versions of bills.
DeSantis also mentioned these proposed policies the following day, at an event in a bar-restaurant in Hampton, New Hampshire. Nikki Haley, one of DeSantis’ rival presidential candidates, also advocated for congressional term limits Jan. 17 at campaign rally in Rochester, New Hampshire.
On congressional term limits and the line-item veto, "We have Supreme Court decisions directly on point," said Ilya Somin, a George Mason University law professor.
The third position DeSantis backed, enabling state authority to enforce immigration laws, is murkier, Somin said, but the most recent major decision would seem to rule out state-ordered deportation, too.
A 5-3 majority handed down the decision Somin cited, Arizona v. United States, in 2012. The justices concluded that federal immigration laws trumped an Arizona immigration enforcement law, S.B. 1070.
DeSantis’ office did not answer an inquiry for this article.
Just because these three policies would seem to be unconstitutional now doesn’t mean that they would be impermissible forever. A subsequent Supreme Court could create new precedent by overturning these decisions.
However, that process could take years to work its way through the courts, and would face long odds because of existing jurisprudence.
This is not the first time DeSantis has offered a policy position that appears to conflict with existing precedents.
In his campaign platform, DeSantis said he would "take action to end the idea that the children of illegal aliens are entitled to birthright citizenship if they are born in the United States."
Experts have told PolitiFact that this approach contravenes the longstanding legal consensus over birthright citizenship, which has typically been defined as having U.S. citizen status by virtue of being born on U.S. soil.
That means that DeSantis would have to pursue a legal case that challenges this historical birthright citizenship definition or begin the arduous process of amending the Constitution. A constitutional amendment would require passage by both congressional chambers and ratification by three-quarters of the states.
Ron DeSantis, remarks at a CNN town hall in Henniker, N.H., Jan. 16, 2024
Ballotpedia, U.S. Term Limits, Inc. v. Thornton, accessed Jan. 17, 2024
Oyez, Arizona v. U.S., June 25, 2012
Ballotpedia, "Line item veto authority for governors," accessed Jan. 17, 2024
Washington Post, "Court Strikes Down Line-Item Veto," June 26, 1998
PolitiFact, "Birthright citizenship: Could Ron DeSantis end it? And if so, how?" June 29, 2023
Email interview with Ilya Somin, George Mason University law professor, Jan. 17, 2024