Showing posts with label congress. Show all posts
Showing posts with label congress. Show all posts

Tuesday, May 18, 2010

Potentially Important Harbinger

Most of the legal press attention yesterday went to the Supreme Court's ruling that states can't impose life sentences without parole on juveniles who commit offenses other than murder. But really, in terms of overall significance, the more important ruling was the one that held that the federal government can civilly commit and detain sexually dangerous prisoners beyond the date they would be released under their criminal sentences.

This other case, United States v. Comstock, was significant because it turned on the scope of Congress's affirmative powers. It wasn't about constitutional limitations such as the Due Process Clause, but whether Congress has power to enact a statute in the first place. Under the Constitution, Congress, unlike a state legislature, does not have general, indefinite powers. Its powers are limited to those specified in the Constitution (mostly in Article I, section 8). If Congress doesn't have the power to pass a statute in the first place, it doesn't matter whether a state could pass the same statute without violating individual freedoms. That's why the Supreme Court struck down provisions of the Gun-Free School Zones Act in the landmark case of United States v. Lopez.

Comstock considered this issue in a somewhat rarefied context, but it could be an important harbinger of how the Supreme Court will rule on the vital question of the constitutionality of the individual health care mandate in the health care reform act, which is being challenged on the same ground. The important point is that Comstock confirmed the traditionally broad view of Congress's powers, including its power, under the Necessary and Proper Clause, to pass all laws that are necessary and proper to put its other powers into execution.

The Court reaffirmed that the word "necessary" in the Necessary and Proper Clause does not mean "absolutely necessary," but rather something more like "convenient" or "useful." The Clause, the Court noted, leaves Congress a "large discretion" in choosing the means to be employed in executing its powers. And the Court adhered to precedents showing that a statute may be valid under the Necessary and Proper Clause even though there are multiple steps in the chain of necessity from one of Congress's expressly enumerated powers to the statute in question -- Congress is not limited to things one step removed from expressly granted powers. Thus, for example, Congress is expressly empowered to "Establish Post Offices and Post Roads," from which, it has been inferred, Congress has the power to carry mail along the post roads, from one post office to another; and from this, it has been secondarily inferred, that Congress has power to punish those who rob the mails. The Court even went so far as to suggest that, in reviewing whether a statute is "necessary and proper" to the execution of Congress's powers, a court should apply the highly deferential standard of asking only whether the statute is "rationally related to the implementation of a constitutionally enumerated power."

Significantly, Chief Justice Roberts joined the Court's opinion, and Justices Kennedy and Alito concurred in the result. Justice Kennedy, the fabled "swing voter" of the Court, thought the Court's opinion went too far in invoking the "rationally related" standard -- he thought there should be somewhat more searching judicial review of whether a statute is "necessary and proper." But he agreed that there is no requirement that a statute be only one step removed from a specifically enumerated power, and he agreed that the test is deferential.

None of the Justices mentioned the health care mandate, but surely they all understand that it lurks in the background. The biggest challenge to the mandate, as I have previously discussed, will be the claim that it exceeds Congress's affirmative powers. The mandate looks a little more secure now than it did before this case. It's still not a slam dunk, but this case suggests that the Supreme Court is not in the mood for further radicalization of its jurisprudence regarding Congress's affirmative powers.

Saturday, March 20, 2010

Deem and Pass

As health care nears its final showdown, everyone's talking about "deem and pass," the procedural mechanism that the House may use to pass the Senate bill. Instead of voting directly on the Senate bill, the House would vote on a rule that provides that the Senate bill is "deemed" to be passed. Can they do that? Glad you asked.

1. As far as I can tell, deem and pass is constitutional. The Constitution permits each house to make its own rules of proceeding. This would be a procedural rule for passing a bill, and it would require a majority vote, so it seems OK to me. It's been used before many times.

And besides, the Senate is constantly doing things without voting on them directly. Some Senator seeks "unanimous consent" that something be deemed accomplished. This procedure is constantly used for confirmation of nominees, and it's used for bills too. Why, just this past Wednesday, Senator Durbin asked unanimous consent that the Congressional Award Program Reauthorization Act "be read a third time and passed," and the presiding officer simply said, "without objection, it is so ordered." There was no actual vote, but the bill was deemed passed. Happens all the time. If it's good enough for the Senate, it's good enough for the House.

2. Even if it's not constitutional, I don't think there would be judicial review of the problem. There's a little number called the "enrolled bill rule," which provides that if the President and Congress claim that a bill was enacted into law, the courts will not look behind that claim to see if the bill was really enacted. So even if "deem and pass" were invalid, I don't think anyone could do anything about it.

3. Having said that, why is the House doing this? As we lawyers like to say, it's not what a prudent lawyer would do. It would just give the courts an extra opportunity to strike down the whole health care reform bill on a silly procedural ground. And by the time the Supreme Court gets the case, it'll be two or three years from now, Congress will have changed, and who knows if the bill could ever get passed again. It's not a huge risk, but it is a risk.

4. And what is anyone getting in exchange? I've never claimed to understand politics, but I don't see what the advantage is in saying, "I didn't vote for the health care mandate, I only voted for a rule that deemed the mandate to be passed." Just vote for the bill, I say.

As far as I can tell, the advantage is that this way, a single vote passes the Senate bill and also gets the amendments the House wants past the House. That way, there can't be a screw-up in which the Senate bill passes but the amendments don't. (Of course the amendments still have to pass the Senate too -- that's the "reconciliation" part.)

So maybe that's why "deem and pass" is on the table, but I still think it would be better to just vote for the bill. I don't think the public understands why this strange procedure is needed, and it looks dodgy. "Deem and pass," apart from the (not very large) constitutional risk, is giving the Republicans the chance to make the Democrats look weasely. If the Dems want the health care bill, they should be proud of it and proud to vote for it.

Tuesday, January 29, 2008

Those Hidden Earmarks

Here's an interesting tidbit that may not have sprung out at you as you dutifully watched President Bush's State of the Union address last night: the President said that he will, today, issue an executive order instructing federal agencies to ignore earmarks that aren't actually included in legislation.

The sound you hear is wailing, gnashing of teeth, and hell generally breaking loose on capitol hill. If the President gets away with this, it will be a big change in how things get done.

Of course, the real mystery is how earmarks have survived so long without being legislated. The way things have traditionally worked, it often happens that the actual text of appropriations legislation just specifies a lump sum for a general activity, and the "earmark" of a particular amount for something like a bridge to nowhere is included, not in the text of the law, but in a committee report accompanying the law.

Committee reports are not actually binding. The law is binding. Why do agencies follow committee reports at all? Presumably, they're afraid of what will happen to them the following year if they don't do what the committee wanted. But the executive officially answers to the law, not to a committee.

So I would say the President is on solid legal ground on this one. But politically, he's asking for more trouble than Bill Clinton could cause in a whole room full of White House interns. Considering what a low political ebb Bush is at, I'm surprised he's taking it on.

Wednesday, July 18, 2007

Making Nice -- Too Nice

What's the point of scheduling an all-night Senate debate if you guarantee that there won't be any votes during the night? The whole point of the exercise is to force the filibustering minority to stay on their feet through the small hours -- to see if they've got the fortitude to filibuster for real. When they get too tired and cranky to keep debating, you hold the vote.

It seems that the Republicans were right after all -- the all-night debate was just a piece of political theater. Majority Leaer Reid wasn't really putting the minority to the test; he just wanted a good show.