Balkinization  

Monday, July 16, 2007

Two proposals (modest or not--you decide)

Sandy Levinson

I have sometimes been chastised for refusing to suggest specific constitutional amendments (to replace, or at least supplement, my call for a new constitutional convention). So here are some proposed constitutional amendments that would in no way require a new constitutional convention:

1. Beginning with the inauguration of the President on Jan. 20, 2013, the President shall not have the power to veto any law passed by Congress unless the veto is accompanied by a message explaining why, in the President's opinion, the legislation violates the Constitution. The veto is subject to override if 60% of Congress assembled together votes to do so, so long as the total 60% includes at least 50% of the House and the Senate. Should the President continue to believe that enforcement of the legislation would be unconstitutional, (s)he can immediately petition the Circuit Court for the District of Columbia for expedited declaratory judgment or injunctive relief, and the Supreme Court shall similarly give expedited consideration to any appeal from the decision. Both of these courts must assess the constitutionality of the legislation. (I.E., THEY WOULD NOT BE ABLE TO INVOKE JURISDICTIONAL TECHNICALITIES, INCLUDING RIPENESS, JUSTICIABILITY, ETC. RECALL THAT THIS IS A PROPOSED CONSTITUTIONAL AMENDMENT, SO IF YOU REALLY CARE ABOUT SUCH THINGS, YOU CAN ADD A PROVISION EXPLICITLY ABOLISHING THE "CASE OR CONTROVERSY" REQUIREMENT IN SUCH SITUATIONS. IN ANY EVENT, THIS WOULD BRING US CLOSER TO THE SOUTH AFRICAN STRUCTURE OF THE PRESIDENTIAL VETO.]


2a. The Twelfth Amendment is hereby modified to provide that separate electors shall be elected by popular vote in the states [NOTE: ALTHOUGH I WOULD GLADLY ABOLISH THE ELECTORAL COLLEGE, THIS AMENDMENT DOESN'T DO IT] with regard to choosing the President and the Vice President. [THIS WOULD PRESUMABLY ACT AS A DETERRENT TO CHOOSING WOEFULLY INADEQUATE CANDIDATES WHO COULD NOT PLAUSIBLY BE REGARDED AS SUITABLE FOR THE WHITE HOUSE, SUCH AS DAN QUAYLE OR SPIRO AGNEW.]

2b. (1) The Twelth Amendment is hereby modified to provide that electors shall vote only for the office of the President of the United States. Upon designation by Congress as the officially elected President, (s)he shall nominate and submit to the Congress for confirmation by a majority of each House of Congress a person to fill the office of Vice President of the United States. The person so named shall enjoy all prerogatives of that office so long as (s)he continues to enjoy the confidence of both the President and at least 40% of Congress. Should either the President, by a letter submitted to the Vice President, with a copy to the Speaker of the House of Represntatives, or more than 60% of both Houses of Congress, meeting together, express their lack of confidence in the vice president, the office shall be declared vacant, to be filled through the procedures no set out in the 25th Amendment. [THIS WOULD SOLVE THE DICK CHENEY PROBLEM, WHERE SOMEONE WITH A SUPERB RESUME TURNS OUT TO HAVE DISASTROUSLY FLAWED JUDGMENT AND A TERRIFYING PERSONA TO BOOT.]

(2) The office of the Vice President shall also be declared vacant upon the determination, by a permanent panel of at least five physicians who shall be selected by the President, Speaker of the House, and President pro Tem of the Senate to serve for 10 year terms, that (s)he has become so physically or mentally debilitated as to suggest unfitness potentially to serve as President of the United States. [THIS WOULD SOLVE THE "TIM JOHNSON PROBLEM" SHOULD A VP EVER BE IN A SIMILAR SITUATION.]

Comments:

I think we need a habeas corpus amendment to the effect that anyone held pursuant to US law has the right of habeas regardless of nationalty or venue.
 

The veto is subject to override if 60% of Congress assembled together votes to do so, so long as the total 60% includes at least 50% of the House and the Senate.

This strikes me as clumsy. The real point you're trying to achieve is removing power from the undemocratic Senate. I think you should fish or cut bait on this: either propose an amendment to make the Senate representative of population rather than states; or transfer the veto override (and other Senatorial powers) to the House.

Should the President continue to believe that enforcement of the legislation would be unconstitutional, (s)he can immediately petition the Circuit Court for the District of Columbia for expedited declaratory judgment or injunctive relief, and the Supreme Court shall similarly give expedited consideration to any appeal from the decision. Both of these courts must assess the constitutionality of the legislation.

The dispute should be limited to those arguments made in the veto message. Also, while you limited some of the arguments, there are others which might affect the outcome. Specifically, (1) could the Court refuse to decide the case on, say, political question grounds?; (2) would the decision be made on facial or as applied grounds?

Couldn't you achieve the same result by reinforcing the obligation of the President to execute the laws. For example, you might add a clause that the President has no power to dispense with the laws or to suspend their operation (that's the language of the English BoR).

The Twelfth Amendment is hereby modified ...

Again, I think it's better to take a position directly rather than try to work around it. If the goal is to abolish the EC -- and that SHOULD be the goal -- follow Nike's advice: Just Do It.
 

As an example, Sandy, for the prior thread: why couldn't the President simply veto S-CHIPS and point out that the Constitution does not allow the FEDERAL government to spend money on such a program?
 

Excepting the immediate relief, isn't this what can arguably be found in Article I? If the President can veto, and return the bill to Congress with his objections, they can either amend as to his suggestions, or override the veto. In either case you have a law that is supposed to be faithfully executed.
 

Beginning with the inauguration of the President on Jan. 20, 2013, the President shall not have the power to veto any law passed by Congress unless the veto is accompanied by a message explaining why, in the President's opinion, the legislation violates the Constitution.

That gets us some really bad, but bitterly defended, constitutional law. Not an improvement, leaving aside the highly dubious notion that constitutional infirmity is the basis for the veto power.
 

That gets us some really bad, but bitterly defended, constitutional law. Not an improvement, leaving aside the highly dubious notion that constitutional infirmity is the basis for the veto power.

One only need to think of ridiculous examples to prove your point. The Congress may be constitutionally permitted to mandate the measurement of distance in milliflonkers (where one milliflonker is equivalent to 1305 taillengths of a band-tailed pigeon), but one would hope that such a bill would be struck down by a wise President.

If one relies on the wisdom or temperance of Congress to not pass such a terrible bill, one has to justify why relying on the President to be wise in his application of the veto is such an untenable idea.

Of course, there's always the problem of the unwise and partisan President. Does legislation cure that sort of problem, though?

@Anderson: Has your blog gone poof or underground? I feel like I forgot to pay the cable bill.
 

Sandy:

Why not just go all the way and repeal the Tenth Amendment / abolish all State government?
 

leaving aside the highly dubious notion that constitutional infirmity is the basis for the veto power.

Though there's no textual support for it, the original expectation seems to have been that Presidents would only use the veto on Constitutional grounds. Jefferson, for example, assumed this for purposes of his memo to Washington on the Bank bill. I can't recall the first time the veto was exercised on purely policy grounds, but it was relatively late in the day.
 

another purpose of the veto was to prevent congress from passing legislation in a fit of frenzy over some pressing issue of the day and making them think about it and pass it more conclusively.
 

How about an amendment to limit the scope of Presidential pardons, etc. Pardons and commutations should restricted ONLY to persons that have had NO direct personal or political or financial relationship with the President or VP. The goal being to prevent pardons of future Nixons, commutations of future Libbys, and potential pardons of future Cheneys.
 

Anonymous:

You ever played "Six Degrees of Kevin Bacon"?
 

So what about the following:

No president shall pardon any person who was a non-civil service member of his or her administration for any crimes committed during the President's term(s) of office.


As for the electoral college per se, that's the subject of another discussion. As everyone knows, I'd gladly get rid of it. But the point of my proposal is to offer a more "moderate" alternative, which would not require us to wrestle with maintaining the EC. Why, for example, would any small state or "battleground" state, which might have a high incentive to maintain the EC, have any similar incentive to maintain an often useless and sometimes dangerous entrenched vice presidency?
 

what about just giving the house or senate standing to compel the president to enforce the law? after all, the only other remedy for a president's selective non-enforcement of a law would be impeachment.

and while we're listing our "dream team" of amendments, what about changing one of the houses into a party representation house? like 200 seats, one seat for every .5% of the national vote a party gets? this would encourage more parties, and force compromise and power sharing agreements.

and supreme court justices should require a 3/4 or 2/3 vote approval. this would (hopefully) give us moderate judges.
 

Though there's no textual support for it, the original expectation seems to have been that Presidents would only use the veto on Constitutional grounds. Jefferson, for example, assumed this for purposes of his memo to Washington on the Bank bill.

The "only" part seems to have escaped Alexander Hamilton in Federalist 73.

As for Jefferson, I can understand that he would *wish* to reinterpret the veto ... and that his prestige would have great influence for some years ... but I would not dream of mistaking him for an authority on the subject. IIRC, he was in France during the Convention. His Bank veto statement is interesting as rhetoric.

(PMS, I confess I deleted TBA in one of my periodic fits of despair with the Internet. If I decide that I have something more to contribute than bleak reactions to bleak news, I may venture out again.)
 

The "only" part seems to have escaped Alexander Hamilton in Federalist 73.

As for Jefferson, I can understand that he would *wish* to reinterpret the veto ... and that his prestige would have great influence for some years ... but I would not dream of mistaking him for an authority on the subject. IIRC, he was in France during the Convention. His Bank veto statement is interesting as rhetoric.


The accepted wisdom used to be that the early veto was limited to Constitutional grounds. That's what I was referring to above. However, a little quick research led me to this more recent article (pdf) which claims that some of the early vetoes were, in fact, made on policy grounds. So I stand corrected.
 

Thanks for the article!

How the accepted wisdom became accepted, & the ideology at work therein, would be another interesting article.
 

If I were to propose an amendment, it would be to Article V, to the effect that any amendment ratified with identical language by the required number of states would take effect without any action by Congress.

Given the ability to circumvent Congressional opposition, I think the states can set things right. Nothing good in the way of an amendment is ever going to come out of a Congress which, thanks to the 'living' Constitution, doesn't NEED amendments.
 

There are different kinds of "policy vetoes." Although it is true that some of the (very few) early vetoes were not on constitutional grounds, it also seems to be the case that they pointed to fairly technical glitches. I believe that it is true that the first real "policy vetoes" were cast by His Accidency John Tyler, and the next President who took full advantage of the veto power was, guess who, Andres Johnson. It's really in the 20th century that the policy veto becomes fully accepted as an ordinary way of doing business. But I'm not interested in arguing on "originalist grounds," since I really don't care what people in 1787 thought would be the optimal way to design a government. Even if one concedes, arguendo, that they were absolutely right for the US of 1787, it is an obvious non sequitor to say that their decisions necessarily make sense for us in 2007.
 

Brett,

You obviously believe that most Americans hate the New Deal and desparately yearn to turn back to clock to pre-1937. I see no shred of evidence that this is anything but wishful thinking on your part. Like it or not, the major changes that took place in the 1930's stood (and stand to this day) because most people wanted (and still want) them.
 

Should the President continue to believe that enforcement of the legislation would be unconstitutional, (s)he can immediately petition the Circuit Court for the District of Columbia for expedited declaratory judgment or injunctive relief, and the Supreme Court shall similarly give expedited consideration to any appeal from the decision. Both of these courts must assess the constitutionality of the legislation.

While we are at it, how about a similar process for any law signed by one of the President's predecessor's that the current President considers unconstitutional. And let's add serious penalties (someone else can figure out what kind) for a President who knowingly breaks such a law without going through this process.
 

Brett - Article V already provides for a bypass of Congress. If 2/3 of the States call for a convention for proposing amendments to the Constitution, and then 3/4 of the States adopt the proposed amendments from that convention, then those amendments become part of the Constitution. This method has never been used, though.
 

Although it is true that some of the (very few) early vetoes were not on constitutional grounds, it also seems to be the case that they pointed to fairly technical glitches. I believe that it is true that the first real "policy vetoes" were cast by His Accidency John Tyler, and the next President who took full advantage of the veto power was, guess who, Andres Johnson.

This was my understanding, though I had forgotten which Presidents were involved. The article I linked argues that some of the earlier vetoes were made on policy grounds, but your description of them as technical seems fair to me.

I, of course, agree entirely on the originalist issue.
 

Point taken on originalism; whether the trouble w/ American gov't is that it's insufficiently democratic, is of course another matter.
 

@Mark: That's a fantastic article; thanks for sharing the find.

@Anderson: I understand completely the TBA situation; I hope that encouraging people who infrequently visit my blog to check yours out didn't cause any angst for you. But between you and Jon Stewart, I had my entertainment bases covered! :)
 

What useful purpose does the vice presidency serve, apart from breaking occasional ties in the Senate (which could easily be remedied by giving the District of Columbia a single senator)?

It would be much better to abolish the office entirely, and provide for presidential succession by designation of one of the Heads of Department with the advise and consent of the Senate. The succeeding Head would only serve until an election can be held for the remaining presidential term.

That would remove the absurdity of having individuals like John Tyler and Chester Arthur serving for 3 years or more as President when they manifestly could not have been elected or even won a party nomination.
 

No, EL, I'm quite aware that some of my views aren't popular, which puts me well ahead of some people here. I am also, however, aware that until a way can be found to circumvent Congress' stranglehold on the amendment process, efforts to amend the Constitution are futile, and discussing potential amendments is just an amusing parlor game.

Congress, with the supine courts, does not need amendments for the 'changes' it wants, and only plays at considering amendments for changes it does not want. It is no accident that the last ratified amendment was over 200 years old, and was almost immediately rendered moot by the courts. The federal government neither wants nor needs Article V to work.

Sorry, Nerp, you're wrong: Article V, in it's present form, calls for Congress to call a convention in the event enough states demand one.

Suppose Congress refuses to? Can anybody say, "non-judiciable"? I'm sure the Supreme court can.

Second flaw in Article V's convention process, is that it doesn't specify how the delegates to the convention are to be chosen. There's nothing to prevent Congress from responding to the call for a convention by calling one, and deciding it's own members are the ideal delegates.

So Article V does not, in it's present form, provide a way to circumvent an obstructionist Congress.

You might well say that we can't square this circle, that Congress wouldn't cooperate in so amending Article V. To this I have two responses.

1. Hoping for one miracle is less insane than hoping for routine miracles every time you need an amendment.

2. We could adopt the amendment to article V in the same manner the Constitution itself was adopted in defiance of the Articles of Confederation's amending process: Bootstrap it by stating in the amendment itself, that it shall be regarded as adopted when ratified on it's own terms, and then daring the federal government to defy the will of that many states.

This would be a very exciting confrontation, of course, and chancy, but represents our last chance to revive our moribund Constitution short of junking the whole thing, and trying to convince a nuclear armed superpower government to agree that it has been junked.
 

Brett,

I didn't know you "obviously believe that most Americans hate the New Deal and desparately yearn to turn back to clock to pre-1937"? I there some kind of a support meeting that David and I can attend with you?
 

Brett,

Article V state that Congress "shall" call for a convention. there is no discretion involved. i can say the word "non-justicible," but i don't see any reason to use it. i can see no reason why Congress' failure to follow a constitutional mandate would not be justicible, any more than an appropriation of money for a standing army exceeding two years would not be justicible. it isn't ideal, but i think your claim there is no bypass is wrong. The amendment doesn't give Congress any say so in the method of convention, so one would look to the traditional method of convention known to the framers.

just as the president hates to have the Supremes tell him/her he/she is acting in an unconstitutional manner, the Congress wouldn't like it either. the failure to call a convention would be a very politically risky move - americans can deal with a lot, but when the word "unconstitutional" or "unlawful" or "illegal" gets used by a Court, that tends to spur them to action.

there have been some times (the only one i can think of is the direct election of senators by the people) where a near critical mass of states called for a convention on the issue. just prior to the Congress actually proposing the 17th amendment, the states were only one state short of triggering the alternate method. right now (supposedly, though i don't know of any definitive source) we are two states short of a call for a convention on a federal balanced budget amendment.

i sympathize with you that it has not been tested, but that doesn't take away from the plain language. Congress simply would have no discretion if such an application was issued. it would be interesting if the Congress ignored it, but i would have to think the courts would go against them, and the people, in the next election, would too. and it seems when it gets close to a critical mass of states, the Congress has a habit of acting.
 

nerpzilla:

Again, what would prevent Congress from appointing its members as delegates? I agree with Brett that Congress could ignore the call altogether, just like they ignore the 10th Amendment:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
 

Charles and Brett

(from Wikipedia)

"In the Federalist Papers Alexander Hamilton notes that applications by two-thirds of the states would be "peremptory," and in the particular of whether Congress issues such a call, "nothing is left to the discretion of that body." [2] In 1789 James Madison affirmed Hamilton's point that a refusal by Congress to call the convention would be unconstitutional.[3]"

http://en.wikipedia.org/wiki/
Convention_to_propose_
amendments_to_U.S._Constitution

George Mason thought likewise, and protested the original plan, which would have required approval from the national government.

As i admitted, it is unclear as to just how the conventions would be formed, though there seems to be a good argument that they would have to be approved by the individual states.

Congress does not (exactly) ignore the 10th amendment, the Courts have determined it is too vague to normally be enforced. So Congress gets a free pass on it. they would not on Article V, whose mandate is clear from the text, and from the framers themselves.
 

Nerpzilla:

there have been some times (the only one i can think of is the direct election of senators by the people) where a near critical mass of states called for a convention on the issue. just prior to the Congress actually proposing the 17th amendment, the states were only one state short of triggering the alternate method.

Thank you for raising this point. Plenty of people of Brett's general ideological outlook (I don't know if that includes Brett himself) regard direct election of senators as a vile usurpation, the final blow denying states all agency in the federal government. It is worthwhile pointing out that it was not a federal power play, but something that the people and the states demanded.
 

Brett: Can anybody say, "non-judiciable"?

Nerpzilla: i can say the word "non-justicible,"

The response to both is "evidently not." Non-justiciable, people.

As to how the SCOTUS would rule on the justiciability issue, that would probably depend on whether the convention was thought to favor the Republicans or the Democrats. See Bush v. Gore, passim.
 

Just thinking out loud:

1. The Twelfth Amendment is hereby repealed.

2. The President shall be elected to office every four years and shall not hold office for more than eight years, neither consecutively nor non-consecutively. An election must be held on the second Monday in the month of November, which day shall be a national holiday, every four years. On this day, no lawful business transactions of any kind may take place and no person shall be paid for any work or service, until the polls have closed in all states. The candidate receiving the most votes shall become the president-elect and will take office on the first day of the new year. During the interim between election and assumption of office, the Speaker of the House of Representatives will nominate a Vice President, who must be selected from among the governors of the states represented by voting member of Congress, who must be confirmed by a majority vote of the House of Representatives and who shall, upon confirmation, become the Vice President-elect, assuming the office on the first day of the new year.

3. Article II, Section II is amended as follows:
The power to pardon shall be restricted to persons who have never received remuneration in the form of salary or reward, either from the United States Treasury or from the President, either before or during the President's term in office, or from one of the President's representatives, excepting officers and enlisted men and women in the United States armed forces.

5. Article I is amended as follows: The Senate and House shall have the absolute authority to question any citizen of the United States, under oath and in public hearing, and by majority vote of either the Senate or the House of Representatives, the Congress shall be able to dismiss any officer or cabinet secretary of the United States, at which time the President must nominate a successor to be confirmed by the Senate. A person dismissed by the Congress shall not be eligible for any further remuneration from the United States.

6. Article I and Article II is amended as follows:
Any bill which has been approved of by a majority of the members the House of Representatives and has not been voted on by the Senate, and the tally of such vote recorded in the Senate journal, shall become a law, unless vetoed by the President, in which case it shall not become a law. Any bill which is voted on by the Senate but does not attain a majority, shall not become a law. Any bill which has been passed by a majority of both the House of Representatives and the Senate, shall become a law and is not subject to the President's signature or veto.

Unworkable and impossible perhaps, but the system requires more than minimal overhaul, IMO.
 

No amendment is necessary to change the operation of the Electoral College so that it reflects the national popular vote. There is an innovative proposal in more than 40 states that seeks to implement a direct national popular vote without a constitutional amendment. It utilizes the interstate compact clause in the Constitution. This proposal is already law in Maryland and has passed legislative houses in at least 10 other states. Check out their website www.nationalpopularvote.com for more information. It’s really interesting.
 

Enlightened, I have met a modest number of people, who (Like I) think the 17th amendment was a mistake. A well intentioned, popular mistake, but a mistake none the less, which perhaps irreversibly, destroyed the ballance of power which had existed between the federal and state governments. Leading directly to the genuine usurpations which were to follow.

But a vile usurpation? Never met anybody who thought that. "Usurpation" has a meaning, you know, it's not a content free epithet, and the 17 amendment, however bad it's consequences have been, was adopted legitimately. Unlike most of the actual usurpations of power of the 20th century federal government.
 

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