Saturday, June 17, 2017

Some Members of Congress Must Just Do These Things For Our Amusement

When I read bills and joint resolutions that have been introduced in either Congress or a state legislature, I find many for which I am unable to account without assuming that the legislators who introduced them intended it as a joke, hoping to amuse the public.  This joint resolution, introduced in the United States House of Representatives in 2013, is an example of such a joint resolution.

The joint resolution, H.J.Res.33, was designed to propose an amendment to the United States Constitution, repealing the Twenty-Seventh Amendment and replacing it with a new passage with very nearly the same wording as the Twenty-Seventh Amendment, but with one subtle change.  That change would have been to replace the word "varying" (as it appears in the Twenty-Seventh Amendment) with the word "increasing", a change which would under certain circumstances have had the potential to marginally alter the ability of Congress to alter its members' own compensation.

The Twenty-Seventh Amendment prevents any act of Congress "varying" the compensation of members of Congress from taking effect until the next regular, biannual election of U.S. Representatives has taken place.  By replacing the word "varying" with the word "increasing", the effect of the amendment proposed by H.J.Res.33 (if it had ever been passed and ratified as required by Article V of the Constitution, which did not happen; it was introduced during the 113th Congress, where it was ignored and permitted to expire) would have been to restore to Congress the freedom to pass a law to cut its own members' compensation without having to wait up to two years (after the next regular election of U.S. Representatives) for that law to take effect.  This would be useful if ever members of Congress were in such a hurry to cut their own pay that it would inflict irreversible harm to require them to wait up to two years for their pay cut to take effect.

I admit that I have met very few members of Congress and have not had the opportunity to observe it up close.  However, if it is safe to rely on Congress' reputation at all (as a general rule, I would want to avoid relying for information on a person or institution's reputation), I would not ordinarily expect Congress to attempt to reduce its members' compensation for their service in Congress.  I also find it difficult to imagine anything which, supposing that Congress were at some future time impelled to give its members a pay cut, would make it so urgent for that pay cut to go into effect that a delay of under two years would be intolerable.  However, this is the effect of the amendment that was proposed in H.J.Res.33: it ensures that whenever Congress intensely desires and is impatient to cut its own pay, nothing in the Constitution would any longer be standing in its way!

Now, I hope that I have not killed the joke by explaining it, but some people would not have understood why I am enjoying this House Joint Resolution / joke so much if I had not explained it.

Most people probably did not realize that there are actually multiple layers to this joke.  As a service to everyone who stands to benefit from it, I will now point out another of these layers.

The amendment proposed through H.J.Res.33 (of the 113th Congress, I emphasize) would have repealed the Twenty-Seventh Amendment to the Constitution in order to replace it with a different amendment containing nearly identical language, and the only substantive change that this would have brought about would have had a marginal impact under circumstances which, realistically, will never actually exist in practice.  The key to this layer of the joke, however, is that while the Twenty-Seventh Amendment was not fully ratified until 1992 (and as a result was not a part of the Constitution until that time), it is in fact a part of the Bill of Rights as proposed by the First Congress in 1789.  As proposed by Congress, it was designated "Article the Second", and preceded all ten of the amendments that we have come to consider our "Bill of Rights".

The significance of the Twenty-Seventh Amendment and Article the Second of the First Congress' proposed version of the Bill of Rights being one and the same is that in addition to what I have already pointed out -- that the potential benefit of H.J.Res.33's proposed amendment depends on the possibility that members of Congress may at some future time be in such a hurry to give themselves a pay cut that it would be unacceptable to allow the Twenty-Seventh Amendment to subject them to a delay lasting under two years ... that being a possibility that could arise, but which I think is unlikely -- the means by which H.J.Res.33 would have provided for this improbable future event would have been to repeal part of the Bill of Rights (as proposed by the First Congress), only to replace what had been repealed with almost precisely the same thing, changing only a single word in order to achieve a negligible change in substance.  Keep in mind that the very same effect could have been achieved through an amendment that simply established that the Twenty-Seventh Amendment may not be construed so as to delay an act of Congress in taking effect if it varies the compensation of Representatives, Senators, or both other than by increasing their compensation.

As I stated above, the only explanation that I find at all believable for the fact that a U.S. Representative offered this proposed constitutional amendment to the House for its consideration is that 1) he has an eccentric but magnificent sense of humor and 2) he realized that if he introduced a joint resolution of this character, someone would eventually discover what he had done and would get a great deal of enjoyment out of it.  Out of all of the bills and resolutions that have ever been introduced in the United States Congress, I doubt very much that many were inspired by greater motives than these.

For that reason, I must now thank the author of H.J.Res.33 for the great work that he did with this.  Former Representative John Barrow (D-GA-12): I have uncovered your proposal from 2013 for repealing the Twenty-Seventh Amendment and replacing it with a passage consisting of the very words of the Twenty-Seventh Amendment that it was intended to replace, with the single exception of its using the word "increasing" where the existing amendment had used the word "varying", which had the potential (if the amendment had ever gone into effect) to ensure that in the event that members of Congress are determined to reduce their own compensation in as expeditious a manner as possible, the danger would no longer exist that the Twenty-Seventh Amendment could force them to wait up to two years to finally receive their pay cuts.  I found H.J.Res.33 to be everything that you undoubtedly intended for it to be.  It made my day.  Thank you.  If the rest of your material turns out to be anything comparable to H.J.Res.33, I believe that you are going to be a star.

Thursday, June 1, 2017

Another Constitutional Authority Statement Relying On Section 8 Of Article I In Its Entirety

Returning to yesterday's discussion of the Constitutional Authority Statements required by the rules of the U.S. House of Representatives for all bills introduced in that house, I think it worth mentioning what I found had been submitted as supplying the constitutional authority for Congress to pass the "Protecting Against Child Exploitation Act of 2017", H.R. 1761.  I did not learn until earlier today that the House of Representatives had passed this bill, which is controversial for numerous reasons but which passed by a very large majority.

In addition to all of the other objections to H.R. 1761, however, I would like to add one relating to the very topic I covered yesterday: this is yet another bill for which the only constitutional authority that its sponsor thought necessary to offer in support of it came in the form of a bare reference to "Article I, Section 8".

As I wrote yesterday, submitting a Constitutional Authority Statement that founds the constitutional power of Congress to pass a particular bill on "Article I, Section 8" without offering any further details is hardly better than just claiming that Congress is granted that constitutional power by "the Constitution".

The Constitutional Authority Statement's reliance on Article I, Section 8 in its entirety is especially strange considering that throughout H.R. 1761's actual text, it is obvious that the bill is designed so as to take advantage of many of the U.S. Supreme Court's most bizarre and untenable precedents concerning the Constitution's grant of power to Congress to "regulate Commerce ... among the several States", using those precedents to set up a strong enough pretense of constitutionality to allow the bill to survive any potential challenges to it in court.

Through those precedents, the Supreme Court has made it possible for Congress to successfully use this "interstate commerce clause" to allow Congress to enact legislation for purposes and having effects which do not pertain to commerce between the states in any serious way.  (These precedents work very much to the advantage of dishonest people and people who readily believe and do whatever they are told, because such people are far more comfortable with this type of precedent than other people are able to be.)  For example, most of the body of H.R. 1761 is devoted to replacing 18 U.S.C. §2251 with a heavily modified form of the existing version.  Like that existing version, the §2251 that H.R. 1761 would replace it with makes it an essential element of the offense that the prohibited conduct be accompanied by any of a number of commerce-themed circumstances that it lists.  (The sole purpose of requiring the presence of those circumstances, which have nothing to do with the conduct meant to be prohibited, is to allow Congress to get away with legislating in matters that the Constitution does not place under its control, allowing it to prohibit a particularly heinous crime which, however, the states separately can and do prohibit and prosecute on their own.)  One of those listed circumstances, which H.R. 1761 borrows from the current version of §2251, requires nothing more to be satisfied than for the core offense (the conduct that Congress actually wants to prohibit, as opposed to the commerce-related hook that Congress uses to get control over the subject) to be committed using materials that have traveled in or affected interstate or foreign commerce.  As the core offense to be prohibited involves the sexual abuse of a minor, we would have to take leave of our senses to think that the source of any materials used by the perpetrator is important, but Congress knows that it has to insert irrelevant elements like this into the definition of the offense in order to give the courts what little they insist upon before they will treat it as though it were authorized by the Constitution ... so that is what Congress does.

But even though H.R. 1761 was clearly designed to allow the interstate commerce clause to be invoked as the source of constitutional authority for it, the Constitutional Authority Statement submitted for it makes nothing more than a general reference to Article I, Section 8 of the Constitution.  Unless U.S. Representatives are going to start taking the Constitutional Authority Statement requirement more seriously than this, it will do no good to keep that requirement in place at all.