Tuesday, August 02, 2011

The Legislation

Marty Lederman

Rarely has so much been written and discussed about a document that so few people have actually seen or read.

Here it is.

I've barely started reading through it; a great deal of it is difficult to parse without a deep understanding of the underlying statutes being amended, and many fairly obscure terms of art. I'm curious whether it raises any serious constitutional problems (something to which OLC is no doubt currently devoting countless hours). I'm opening comments here, with some trepidation. Please limit comments to identifying possible constitutional issues -- there are thousands of other fora more appropriate for debating the wisdom and politics of the legislation. Thanks


My main concern with the legislation would be its effects on House and Senate rules. I see two problems.

First and less interesting, it seems clear to me that the language of Title II, "forcing" a vote on the Balanced Budget Amendment, is in no way anything more than hortatory. Even a statute passed by rule-amending margins in both houses seems like it must yield to the explicit constitutional direction that each house of Congress determine its own rules.

The second question is somewhat more interesting: arguably some provisions of the bill amend Senate rules (see, e.g., sec. 106). To amend Senate rules you need a 2/3 majority. The Senate passed the bill with more than that, 74-26, but my question is whether the announced requirement for passage was 2/3. If not, senators were voting under a false impression of the bill's chances for passage, and the vote is conceivably invalid. See Powell v. McCormack.

It's not a great point of leverage - I expect at the end of the day the parliamentary issue is not reviewable in court - but it's a button to push.

I have not read the bill but I would expect that there would be a provision saying that the rules changes are enacted under the Rules of Proceedings Clause (a quick search shows such a provision on page 42). This is not uncommon (see Aaron Bruhl's article on "statutized rules" for more details).

With regard to the changes to Senate rules, it is not exactly correct to say you need two-thirds vote to change Senate rules. You need a two-thirds vote to invoke cloture on a motion to change the rules. I don't know how that would have applied here if someone had objected to ending debate, but as I understand it, no one did.

I have an observation I hope is right, but I'm prepared to stand corrected.

Section 402(e) seems to be a savings clause under Article I, Section 7 of the Constitution, which requires revenue bills to originate in the House. An alternative, sinister explanation now making the talk radio rounds, which I don't buy, is that 402(e) works mischief of the anti-tax, pro-Tea Party variety.

As a whole section 402 provides for the joint committee to submit a bill to each House (subsection (a)) and for committees of each House to report the bill to its respective floor, without amendment, for a vote by December 23 (subsections (b) and (c)). The ban against amendments is reiterated in subsection (d): the joint committee bill "shall not be subject to amendment in either the House of Representatives or the Senate." This is all straightforward enough.

But subsection (e) (at 66-67) then introduces what seems an innocuous scenario that's curiously described: "before passing the joint committee bill, one House receives from the other a joint committee bill" (italics mine). The intercameral process can involve at most two copies of the same set of words. Why talk of "a" bill?

I think subsection (e) is working a legal fiction, treating the bill passed by the first House to act as that House's product and as distinct from whatever the other House is working on. The rest of subsection (e)(1) supports such a reading. It tells the receiving House not to refer the received bill to a committee but to proceed "as if no joint committee bill had been received from the other House until the vote on passage, when the joint committee bill received from the other House shall supplant the joint committee bill of the receiving House." It takes no parliamentary expert to see these words as short-circuiting steps in keeping with the legal fiction just posited.

The legal fiction would also explain the allegedly sinister words in (e)(2), which are my main focus. They read: "This subsection shall not apply to the House of Representatives if the joint committee bill received from the Senate is a revenue measure."

I read this as saying nothing more than that, if the House of Representatives receives from the Senate the very words it is considering and if they include revenue-raising words, the House will be deemed to have passed the words that it was given by the joint committee in contrast with the (identical) words received from the Senate. That would put Congress in technical compliance with Article I, Section 7.

The sinister reading now in the air would have it that the joint committee's extraordinary powers are confined to spending cuts and do not reach the revenue side, in which case all bets are off and the House can have its way. I don't buy this reading for two reasons. First, 402 is a section, not a subsection, so the exemption only covers the niceties of 402(e). Second, the exemption is confined to the case where the Senate passes the joint committee bill first. If the intent were sinister, Harry Reid could avert disaster by waiting for the House act first.

Section 402(e)(2) may be adapting standard language for revenue bills to cover genuine intercameral back-and-forth. Even so it strikes an odd note. I agree with Jack Balkin's reading of the debt clause of the fourteenth amendment and believe the actions of Tea Party Republicans contravened it, so I'm freshly inured to congressional action that subverts the Constitution it purports to uphold. Still, if my reading is right, it means someone actually had conscience enough to insert an obscure fig leaf. If so, I'm just a little impressed.

But am I missing anything?

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   The debt ceiling is unconstitutional because it's only application, not allowing the United States to borrow money, is unconstitutional.

   When America has bills it can't pay because of the debt ceiling, the constitution is violated because:

1.  It damages the full faith and credit of the United States.

2.  It violates presidential power to "..take Care that the Laws be faithfully executed," by not allowing the Treasury to borrow money to pay the bills that Congress has created.

3.  It does not "promote the general Welfare" of the people of the United States.

   Treasury bills lost some of their value as collateral as a direct result of Congress not extending the debt ceiling in May and dragging us to the brink of default in August. 

   I hope some of the constitutional scholars reading this will use our collective diminished credit as standing to launch a direct challenge to the debt ceiling law.

    The current debt ceiling bill has several clauses that are situationally unconstitutional.

    On page 27:

    After September 30, 2011, and not later than December
  31, 2011, the House of Representatives and Senate, respectively, shall vote on passage of a joint resolution, the title
of which is as follows: ‘‘Joint resolution proposing a balanced budget amendment to the Constitution of the United States.’’.

    Congress may have the power to tell itself to do something but it doesn't have the constitutional power to force itself to do anything beyond following rules of order.

   I find it amusing that the same people that are saying that it is unconstitutional to compel Americans to buy insurance, think it's constitutional for Congress to compel itself to vote on a constitutional amendment that limits Congress's ability to buy anything.

   On page 35:

   "That Congress disapproves of the President’s exercise of authority to increase the debt limit’."

    (The word disapproves in this case means revokes because of the earlier sections of the law where they allow the President to authorize an increase of the debt ceiling under certain conditions and define the effect of a vote of disapproval.) 

   If the money has already been spent at the time of disapproval then this section violates the ex post facto clause and would require a breach in the space-time continuum to enforce in full.

I have good news and bad news. First the good news.

My analysis was right. Section 402(e) was inserted to bring the Act into compliance with Art. I Sec. 7. Thom Hartmann was the progressive talk show host who had launched the sinister rumor I mentioned, namely, that 402(e) was a Tea Party anti-tax escape clause. He corrected himself today after consulting with a parliamentary expert, confirming my reading: The clause is there so a Super Congress-crafted bill to raise revenue can be deemed to originate in the House of Representatives.

Now for the bad news. It begins with a constitutional question: Does 402(e) accomplish what it purports to do, that is, save the Act from a Section 7 attack?

It’s debatable. The Act contemplates revenue-raising legislation that the House has no power to shape using its Section 7 power. Can the House delegate that power to the Super Congress? If Ulysses has himself tied to the mast, is he still captain?

The Act presents a different case from the usual bicameral back-and-forth that inspired clauses on which 402(e) is modeled. Usually, even if the Senate proposes a revenue-raising bill it's up to the House to make it law or not, so the House never cedes its Section 7 power, giving the legal fiction a basis in power relations that remain unchanged. Where the Act is concerned, however, the legal fiction is more fictional. Arguably the House has relinquished its Section 7 power since it can't repeal the Act unilaterally to regain its power.

Thus a constitutional issue lurks in 402(e). But that's not the worst of it. The issue leaves room for further mischief by the Tea Party since, yes, the Act has a severability clause. (See page 2 – What genius thought to put such a clause into an over-the-top law striking so delicate a balance and poised on a razor's edge? A citizen can be forgiven for asking.)

The Tea Party faction can stage a tantrum for selective invalidation of 402(e) if the Super Congress proposes a revenue measure; otherwise it can let this sleeping dog lie. If they raise a stink their constituents will hear that the Framers worked tirelessly till non-House-created taxes were no more, coupled to coded references to the secession by the Ten Tribes after Solomon raised their taxes.

On second thought maybe the House leadership would never let its Tea Party faction get away with this. To quote the president, "Look, here’s my expectation — and I’ll take John Boehner at his word — that nobody, Democrat or Republican, is willing to see the full faith and credit of the United States government collapse, that that would not be a good thing to happen. "

Oh, wait. That's what he said after he extended the Bush tax cuts, to assure the public he was on top of things and that the Republicans, with all they've gotten, would never buzz the full faith and credit from a tax-advantaged corporate jet.

I take it back. Expect the worst if push comes to shove.

Maybe there's an answer in anticipation of the worst. Section 7 governs relations between the two houses of Congress, not between the two houses and a Super Congress. So if there's a constitutional problem, there's an even bigger one since Congress as a whole can't tie a future Congress down, even if it's the same folks. (Going back to the analogy, Ulysses can't have himself tied in knots that his future self can't untie if the ship lands in bad straits or if the sirens' song isn't Top 40 stuff.) But the Tea Party lives off of sophistry. And if they made a stink the president and Democratic-run Senate would have to pull the big plug on the deal rather than cave and cut a new, even worse deal.

Any predictions?

Even aside from this issue, which after all may never come back to bite, how is it that our president the constitutional lawyer – seen by some as the smartest guy in the rubber room – keeps outsmarting himself,? That would still leave him the smartest under a certain logic, but the logic gets more painful by the day.

At page 53 the legislation states “any change to the Rules of the House of Representatives or the Standing Rules of the Senate included in the report or legislative language shall be considered to be merely advisory.”

Does this mean that if the bill reported by the Joint Committee contains language changing the rules of the House or Senate, such changes are not effective even if the bill is enacted into law? Is it possible to have legislation saying that future legislation is to be interpreted to mean something other than what it says? What happens if the future legislation purports to repeal the “only advisory” language in the prior legislation?

I posted some thoughts on this at

Balkinization is a weblog focused on constitutional, First Amendment, and other civil liberty issues created in 2003 by Jack Balkin, a professor of U.S. constitutional law at Yale Law School. The weblog has been critical of the Bush Administration's record on civil liberty issues in the Global War.
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