Saturday, April 02, 2011

Constitutional Liability Rules -- Part IV

Gerard N. Magliocca

This is the final post in a series about what I am calling "constitutional liability rules." The idea is that in certain situations the best design involves allowing government institutions to retain their right to act but imposing a penalty on them if they do. We see that with the Spending Clause and other textual provisions (e.g., the Direct Tax Clause), and we see that in the historical examples that my prior posts described. The obvious question is whether there is any room for this concept to expand. (I should add that there are portions of the text where the Framers anticipated and rejected this option, most notably in the provisions barring Congress from reducing the salaries of judges or the President.)

One thought is that the Article Five process could be streamlined (for those who think that ratifying amendments in the states is too difficult) by adopting a practice whereby Congress would declare after passing an amendment by the requisite two-thirds that states will suffer an appropriations penalty of some sort if they refuse to sign up. This would be a reasonable workaround because the states would retain their right to veto a textual amendment but only if they felt that the expression of national will in Congress was totally misplaced. There may be others, but I'm not sure. That is why this is a work-in-progress.

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