More On The Constutitionality Of The Super-Commission

Two legal eagles have commented on the constitutionality of the “super-commission” created by the debt deal, and have voted in the affirmative.

First, at Just Enrichment, Amanda Rice tackles an accusation that was made here on an earlier thread:

2) Article I, Section 7: “All bills for raising Revenue shall originate in the House of Representatives.” 3) Article I, Section 8: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . . .”

The arguments that the Super Congress would violate either Section 7 or Section 8 overlook the fact that, in the relevant sense, the bill will “originate” in the House and ultimately be passed by Congress. The Super Congress may only submit proposals. Giving the Super Congress the power to actually enact these bills would be a big problem; giving it the power to make proposals is not.

Of course, that’s pretty much what I said at the time, but it’s nice to have confirmation. She covers other points as well, so it’s worth a read.

On another blog, libertarian lawyer Eugene Volokh, primary conspirator over at the Volokh Conspiracy (gotta love that blog name), looks at several points:

1. Article I, § 5 of the Constitution provides that “Each House may determine the Rules of its proceedings.” This is the basis for how a wide variety of Congressional decisions are delegated in the first instance to committees, and how some matters are delegated to joint committees. And the Act makes clear that, “The provisions of this title are enacted by Congress … as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and as such they shall be considered as part of the rules of each House, respectively, or of that House to which they specifically apply.”

2. This power doesn’t extend to actually allowing some other body, whether a Committee or not, to do things that themselves have the force of law. (See INS v. Chadha.) But under this proposal, the Joint Select Committee would simply submit its work product to Congress; as usual, the House and the Senate would decide whether to enact the law, and the President would decide whether to sign it. To be sure, the fast-track mechanism, with the restrictions on amendments and on the time available for debate, is unusual, and is intended to make the Committee’s work product especially influential. But again that’s part of the Houses’ power to make rules — the time available for debate and the possibility of amendment are themselves artifacts of the current rules of the Houses, and each House may alter those rules for particular kinds of legislation. (My understanding is that this is what has happened, for instance, with the fast-track trade agreement rules.)

3. Of course, the rules made by the Houses at one point may be changed later, and the Act acknowledges this: “The provisions of this title are enacted by Congress … with full recognition of the constitutional right of either House to change such rules (so far as relating to such House) at any time, in the same manner, and to the same extent as in the case of any other rule of such House.” It might be politically difficult to go back on the fast-track system created by the Act — just as it’s politically difficult to cut back on the filibuster in the Senate, another example of an important feature of our political system that’s created by a Rule of one of the Houses — and I think the authors of the Act wanted that to be politically difficult. But that doesn’t make the rule change unconstitutional.

In short, as I said before, Ron Paul and Judge Andrew Napolitano, one of which I respect, are both unfortunately wrong about the constitutionality of this committee. It’s simply an advisory committee that is set up to come up with a plan for Congress to vote on… which is, of course, the Congress’ primary constitutional duty, to vote on legislation.

(I’m closing comments on the earlier thread now, please place any and all comments regarding this here.)


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About Conservative Wanderer

Conservative Wanderer is currently Editor-in-Chief of That's Freedom You Hear! That means anything that goes wrong can be blamed on him. Previously he was a contributor to the PJ Tatler.
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