With the beloved Vermont Independent Bernie Sanders gearing up for another bid for the presidency in 2020, the Democratic primary field is one of the oldest in recent memory. Sanders, at 77, is five years older than President Donald Trump—the oldest person ever elected to the office except for Ronald Reagan in his second term. Two of Sanders’ most viable Democratic competitors, Elizabeth Warren and Joe Biden, are 69 and 76, respectively.
The age of many of those seeking office lends itself to a question: Is a candidate ever too old to run?
Article II of the Constitution doesn’t set a maximum age for holding the office of president, instead setting a minimum age of 35 and stringent citizenship requirements as the preconditions for executive power. But the question of setting a maximum age is becoming an increasingly pressing one as the average age of presidential nominees has steadily increased over the last century. While average life expectancy has also increased among American men and women, “age is a potent risk factor for any number of diseases,” as FiveThirtyEight noted during the 2016 contest, including “the incidence of heart disease, cancer and Alzheimer’s disease all increase in advancing years.”
Sanders may appear as vibrant and energized as ever, but the office of the presidency isn’t always forgiving. First Lady Edith Wilson assumed a de facto presidency after President Woodrow Wilson was bedridden following a stroke in October of 1919, conveying his will through the end of his second term in 1921; Concerns over the impact of Alzheimer’s have plagued historical assessments of President Ronald Reagan’s second term. Even William Henry Harrison, the oldest person to assume the presidency prior to Reagan and Trump at 68, was kneecapped by pneumonia when he opted to give the longest inaugural address in American history coatless in the snow.
Supposing an argument could be made that a president’s age can pose a serious health issue, would an age ceiling for candidates—much like the age floor—stand up to a constitutional challenge?
There exists little ambiguity over “founder’s intent” regarding age constraints for the presidency given that they’re explicitly spelled out in Article II; a constitutional originalist might argue that, had the Framers felt an age limit necessary, they would have written it into the other explicit age restrictions.
Even if politicians decide that the Framers never anticipated the long lifespans of modern presidents and Congress did opt to push for a statutory age limit, a prohibition on candidates above a certain age seeking office would face other legal obstacles, given the unique role of age-based criteria in the American legal system. While the Fourteenth Amendment would ostensibly prohibit an age ceiling, there is some precedent for establishing age limits on employment in certain industries. Syracuse University College of Law professor Nina A. Kohn notes in the University of California–Davis Law Review that the United States Supreme Court’s 1976 decision in Massachusetts Board of Retirement v. Murgia—in which the court upheld a state law requiring police officers to retire at 50—established the broad legal principle that litigants couldn’t deploy the Equal Protection Clause against statutory age discrimination.
“Chronological age is seen as an expedient and acceptable proxy for a variety of underlying human characteristics that policymakers wish to target for public policy interventions, and age-based criteria continue to be entrenched in U.S. public policy,” writes Kohn in an analysis of age-based discrimination. “For example, one must be twenty-one to consume alcohol legally and sixty-five to become eligible for general Medicare. … Chronological age criteria employed in statutes can also dictate the ability of an individual to invoke statutory protection from employment discrimination.”
This same standard of age discrimination applies as much to youthful aspirants to the presidency as it does the elderly—only rather than vague or presumptive, it’s explicitly spelled out in the Constitution, making the threshold for a legal challenge far higher. According to the National Constitution Center, the minimum age of 35 requirement for candidacy was implemented based, at least partially, on framer George Mason’s own concerns over the matter of experience. “If interrogated,” Mason once said, he would “be obliged to declare that his political opinions at the age of 21 were too crude and erroneous to merit an influence on public measures.”
In our modern era, however, civic responsibility certainly seems able to take hold at a far younger age than 35, leaving potential leaders to languish on the outskirts of governance despite their qualifications. As Osita Nwanevu argued in Slate in 2014, “The consequence of the nation’s age of candidacy laws is that one-third of American adults—the more than 74 million people between 18 to 35—don’t enjoy full political rights: If they’re citizens, they have the right to vote without necessarily having the right to be voted for. This is wrong.”
Sanders and Trump may very well be too old to be fit to be president, but there’s nothing stopping them from running, constitutionally. It would take a significant political exigency to catalyze a statutory prohibition on septuagenarian presidencies; but if the age of candidates continues to rise, we might already have that exigency.
