Author: Michael Stern

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The Origination Clause and the Fiscal Cliff (updated)

Since the discussion of the issue has been rather muted, it may be worth flagging the potential impact of the Origination Clause, art. I, sect. 7, cl. 1, on how the so-called “fiscal cliff” is resolved. The Origination Clause provides that “[a]ll Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.”

Let’s begin with efforts to get the House to pass a Senate bill, S. 3412, the “Middle Class Tax Cut Act,” to extend current tax rates on all income brackets except the top two. The bill in question originated in the Senate (as reflected by the Senate bill number) and so would seem to violate the Origination Clause if it is a bill “for raising Revenue.

One might ask whether S. 3412 is a bill “for raising Revenue” given that it does not increase taxes, but merely keeps certain tax rates (which would otherwise automatically increase in 2013) at current levels. However, it appears fairly well-established, at least as a matter of congressional precedent, that the Clause covers all bills relating to raising revenues, not merely those that increase current revenues. The House has long taken the position that it has “sole and exclusive privilege to originate all bills directly affecting the revenue, whether such bills be for the imposition, reduction or repeal of taxes.” 2 Hinds Precedents § 1489 (resolution of 1872). There is some judicial authority in support of this proposition as well. See Armstrong v. United States, 759 F.2d 1378, 1381 (9th Cir. 1985) (“The term ‘Bills for raising Revenue’ does not refer only to laws increasing taxes, but instead refers in general to all laws relating to taxes.”) (emphasis in original).

House Democrats have sought to force a House vote on S. 3412 through the use of a discharge petition. However, Speaker Boehner observed the other day that any attempt to vote on S. 3412 would face a “blue-slip problem” in the House.  As McKay and Johnson explain (Parliament and Congress 241-42), this is a reference to the procedure the House uses to enforce its prerogatives under the Origination Clause:

The prerogative must be raised and resolved as a question of privilege in the House by disposition of a resolution generally asserting the prerogative without specifying the offending provision and purporting to return the entire Senate bill or amendment to the Senate as an infringement. Debate on the resolution then details the offending matter. ‘Blue-slipping’ is the term applied to the process by which the House returns an offending measure to the Senate, as the resolution if adopted is printed on blue paper. Any Member may offer such a resolution, but it normally is presented by the Chairman of the Committee on Ways and Means as the institutional guardian of the House’s revenue-raising prerogative. Traditionally the House on a bipartisan basis supports the position taken by the Chairman of Ways and Means despite the political acceptability of the measure containing the offending provision.

While S. 3412 appears to violate the Origination Clause, the Senate is not constitutionally barred from taking the initiative now on a revenue bill. This is because the Senate is permitted to propose amendments to revenue bills that have originated in the House. While there are some gray areas with respect to the scope of that authority, there would not seem to be any question of the Senate’s right to take a House bill such as H.R. 8, the “Job Protection and Recession Prevention Act of 2012,” which passed the House on August 1, 2012, and propose the language of S. 3412 as an amendment. (H.R. 8 would extend all of the current tax rates).

Of course, the Senate’s authority in this regard only lasts until January 3, 2013, when the current Congress ends. At that point all legislation introduced in the 112th Congress will expire, and the Senate will have to wait on a new House bill before it can (constitutionally) move revenue legislation.

For more background on the Origination Clause, see this CRS report.

 

Fiscal Cliff Update (1-1-13): 

The Senate’s action yesterday was to pass H.R. 8 (“American Taxpayer Relief Act of 2012”), as amended. So there is no Origination Clause violation, as far as I can see.

And the House has about 45 hours to act.

 

 

 

 

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Does James Monroe’s Presence at the Virginia Ratifying Convention Shed Light on the Meaning of the Recess Appointments Clause?

More from the Noel Canning argument: No doubt much to her surprise, Beth Brinkmann was questioned intensively about the meaning of the phrase “which may happen” in the Recess Appointments Clause. Both Judge Sentelle and (to a lesser extent) Judge Griffith were unimpressed by the longstanding executive branch position, dating back to Attorney General Wirt in 1823, that this phrase means vacancies that “happen to exist” during the recess.

In response, Brinkmann pointed out that Wirt was advising President Monroe, whom she identified either as a “framer” or a “founder” (I can’t remember which) of the Constitution.  This fact, she suggested, bolstered the credibility of Wirt’s interpretation.

Monroe was not at the 1787 Philadelphia Convention, but he was a delegate to the Virginia convention that ratified the Constitution. Monroe voted against ratification, contending that it gave the federal government too much power. I am fairly sure that there is no evidence of Monroe expressing any view about the RAC at the ratifying convention and, for that matter, I am not aware of Monroe commenting on the RAC at any time in his life.

So what are we to make of the fact that, more than 30 years after the drafting and ratification of the Constitution, Monroe received an opinion from his Attorney General that the RAC applied to all vacancies that “happen to exist,” rather than only those that “happen to arise,” during the Senate’s recess? By Wirt’s own admission, his interpretation relied on the “reason and spirit” of the Constitution, while the contrary interpretation was more consistent with its “letter.” Moreover, although not mentioned (and possibly not known) by Wirt, there were at least two actual framers, Edmund Randolph and Alexander Hamilton, who made far more contemporaneous statements in support of the “happen to arise” interpretation.

Presumably Brinkmann is claiming that if Wirt’s interpretation had been wrong, Monroe would have rushed into Wirt’s office saying something like the following: “Bill- even though I voted against ratifying the Constitution because it gave too much power to the central government, I specifically remember thinking ‘thank goodness it doesn’t give the president the power to circumvent the Senate whenever it fails to confirm his nominees.’ Now take this opinion back and redo it. And by the way, you might want to consider whether joining the Freemasons is a good career move.”

I’d say the probative value of this “evidence” is between slim and none. And Slim’s out of town.

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(Almost) Live From the Noel Canning Argument!

There were many important issues raised in today’s D.C. Circuit argument in Noel Canning v. NLRB, the recess appointments case, but lets start with some unimportant ones.

How do you pronounce Harry Daugherty’s name? The Justice Department lawyer representing NLRB, Beth Brinkmann, pronounced it “Dockerty,” and the panel went along with that. I have always pronounced it “Doh-her-tee” or “Daw-her-tee” (according to Wikipedia, its “daw-HER-tee”). I think if DOJ is going to rely so much on Daugherty’s opinion, it should at least know how to pronounce his name. Exit question- how do they pronounce it on “Boardwalk Empire”?

How come this can’t be the Goya Rice case? According to Noel Francisco, who appeared on behalf of Noel Canning and the Chamber of Commerce, the Chamber has standing to intervene in the case because it has at least two members, Noel Canning and Goya Rice, currently participating in proceedings before the NLRB. It would be a lot easier to explain the importance of the Recess Appointments Clause to my children if Goya Rice were the named party—they have never heard of Noel Canning, but we go through a box of Goya Rice every week.

Why isn’t Senate Legal Counsel here? Judge Griffith, himself a former Senate Legal Counsel, asked this question during the argument. Griffith was making the rhetorical point that the Senate had not taken a position in the case, but the literal answer to his question was that Senate Legal Counsel was in an overflow courtroom downstairs. By the time he and the Deputy Senate Legal Counsel arrived, there was no more room in the main courtroom (though Senator McConnell, who arrived afterward, apparently had a reserved seat). I sat in the overflow courtroom as well, where a watchful clerk made sure no one was live blogging the proceedings.

What’s so great about unanimous consent anyway? Francisco argued that since nominees are usually confirmed by unanimous consent, the fact that the Senate could only act by unanimous consent during its pro forma sessions did not prevent the President from getting nominees confirmed. Judges Griffith and Sentelle were at immediate pains to point out that not all nominees are approved by unanimous consent. Sentelle, who was confirmed by an 87-0 vote, reiterated the point, possibly throwing a meaningful look at Griffith (there was only audio in the overflow courtroom). “I said usually,” stressed Francisco. “Lets move on,” said Griffith, who was confirmed 73-24, good-naturedly. Judge Henderson, who was confirmed by unanimous consent, tactfully remained silent.

 

 

 

 

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Another Peculiar Resignation from Illinois

As you may have heard, Representative Jesse Jackson, Jr. submitted a letter of resignation to the Speaker the day before Thanksgiving. The Hill explains: “Jackson has been absent from Congress since June, while receiving inpatient treatment for bipolar disorder. He returned to Washington in September but then checked back into the Mayo Clinic in Minnesota. In November Jackson checked out of the Mayo Clinic again and continued to receive treatment elsewhere.”

Jackson won a contested primary against former Representative Debbie Halvorson in March 2012, and he easily won the general election on November 6, 1012. Thus, in addition to being a Member of the House in the 112th Congress, Jackson was a Member-elect of the 113th Congress.

The relevant part of Jackson’s November 21, 2012 letter reads:

For seventeen years I have given 100 percent of my time, energy, and life to public service. However, over the past several months, as my health has deteriorated, my ability to serve the constituents of my district has continued to diminish. Against the recommendations of my doctors, I had hoped and tried to return to Washington and continue working on the issues that matter most to the people of the Second District. I know now that will not be possible.

The constituents of the Second District deserve a full-time legislator in Washington, something I cannot be for the foreseeable future. My health issues and treatment regimen have become incompatible with service in the House of Representatives. Therefore, it is with great regret that I hereby resign as a member of the United States House of Representatives, effective today, in order to focus on restoring my health.

(emphasis added).

There are a couple of noteworthy things about this letter. First, Representative Jackson clearly and expressly resigns his seat in the current Congress (the 112th). Because it will be impossible to fill the vacancy before the Congress expires, the major practical effect of this resignation is to deprive his constituents of a vote in the House during the lame-duck session. To be sure, it will also save taxpayers the cost of Jackson’s congressional salary for about 6 weeks, but Jackson could have saved taxpayers an equivalent amount of money without resigning. Having retained his seat for many months while absent from his congressional duties, it is unclear why Jackson would choose to resign now.

Second, although his letter implies that he will not be taking the seat to which he was elected in the 113th Congress, Jackson does not explicitly state his intention in this regard. This strikes me as an odd omission. House precedent shows that a Member-elect may resign before taking office and that the chief executive of the state may treat the resignation as creating an immediate vacancy. II Hinds Precedents § 1230 et seq. The timing of the vacancy appears to be a question of state law. For example, when in November 1998 then-Speaker Gingrich informed the Governor of Georgia that he would “not take the seat of congressman for the Sixth District of Georgia for the 106th Congress,” the Governor did not attempt to call a special election until after the 106th Congress convened in January 1999. House Rules & Manual § 20.

Here Jackson has not explicitly declined his seat in the 113th Congress. Such intent may be inferred from his letter (assuming that January 2013 falls within the “foreseeable future”), but it is doubtful that this constitutes an effective resignation for purposes of creating an immediate vacancy. Illinois Election Code 25-2 provides: “An unconditional resignation, effective at a future date, may not be withdrawn after it is received by the officer authorized to fill the vacancy. Such resignation shall create a vacancy in office for the purpose of determining the time period which would require an election.” One would think that for Jackson’s letter to be effective as an “unconditional resignation” of his seat in the 113th Congress, it would have at least to expressly state that it was a resignation of that seat.

Illinois officials are apparently under the impression that they are required to treat Jackson’s letter as creating a vacancy for the 113th Congress, and they are scrambling to seek a judicial waiver of the time periods provided by Illinois law. It seems to me, however, that this may be unnecessary because no vacancy has yet arisen under Illinois law. But Illinois may want to instruct its congressional delegation on how to resign.

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May the President Accept a Foreign Title of Nobility?

Over at The Originalism Blog, Professor Seth Barrett Tillman cites a new piece of evidence for his position that the President does not hold an office “under” the United States within the meaning of the Constitution. (For prior discussions of Professor Tillman’s views on this see here, here and here), Specifically, he points to the fact that President Washington “accepted a framed full-length portrait of Louis XVI from the French ambassador.”

This acceptance, Tillman suggests, would have been unconstitutional if Washington had been an officer under the United States at the time because Article I, section 9, clause 8 provides:

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind, whatever, from any King, Prince, or foreign state.

Because the portrait was evidently a “present” from the French government, it could not be accepted by any officer under the United States without the consent of Congress. Tillman contends that no such consent was sought or given; thus, Washington must either have (a) violated the Foreign Emoluments Clause or (b) believed that it was inapplicable to the president because his office was not “under the United States.”

Note that if the latter were true, it would mean that Washington not only believed the Clause inapplicable to the office of the president, but he thought this conclusion so inescapable and non-controversial that it was unnecessary to seek any formal opinion or make any record of his decision. It would also suggest he was unconcerned with the implication that the president could accept an office or title of nobility from a foreign government.

These assumptions are hard to indulge. As far as I know, there is no direct evidence that either Washington or any of his contemporaries interpreted the phrase “office under the United States” to exclude the presidency. This is not a natural or self-evident reading of the constitutional text, as illustrated by the fact that the conventional wisdom has long been to the contrary. Thus, we would have to believe that Washington acted on the basis of an original public meaning that was crystal clear to him, yet somehow vanished without a trace.

Even if we assume, for argument’s sake, that Washington could have read the text in the way Tillman proposes, it would still seem unlikely that he would have accepted the Louis XVI painting on that basis. Surely Washington would have been as concerned about violating the spirit as the letter of the Constitution. Article II expressly bars the president from receiving, during his term, “any other Emolument from the United States, or any of them.” Would not Washington have hesitated before interpreting the Foreign Emoluments Clause to permit the receipt of emoluments from a foreign government?

Even more importantly, it is hard to believe that Washington would have interpreted the Foreign Emoluments Clause to allow the president to receive an office or a title of nobility from a foreign government. The Constitution explicitly prohibits both federal and state governments from granting titles of nobility to anyone. Although it does not prohibit private citizens from receiving titles of nobility from foreign governments, this should not be taken as condoning the practice. William Rawle notes that “[a] salutary amendment, extending the prohibition to all citizens of the United States, and disenfranchising those who infringe it, has been adopted by some of the states; but not yet by a sufficient number.” W. Rawles, A View of the Constitution 120 (2d ed. 1829). It does not strike me as likely that Washington’s sensibilities were much different, or that he would have lightly interpreted the Foreign Emoluments Clause in the manner Tillman suggests.

For these reasons I would look for another explanation for Washington’s acceptance of the painting from the French ambassador. Perhaps he believed that he did have congressional consent for receiving such an item. Perhaps he did not believe, at the time he accepted the painting, that it was a personal gift (though he later took it to Mount Vernon). I would be reluctant to conclude that President Washington intentionally or negligently violated the Constitution, but even this seems more likely than the suggested alternative.

 

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Could New York Legally Add Another Day of Voting after Tomorrow?

There has been much discussion over the past week or so regarding the question of whether a presidential election can be postponed, either generally or in particular states, in the event of a natural disaster such as Hurricane Sandy. Professor Steve Huefner (a veteran of the Senate Legal Counsel’s office) has an excellent summary of the applicable constitutional and statutory provisions. Professor Rick Hasen weighs in here, arguing we need federal legislation to address this issue.

I think it would be widely, if not universally, agreed that Congress has the constitutional authority to provide that a presidential election may be postponed under particular circumstances, or that additional time may be added to permit completion of the voting process after the legally specified day of election. The Constitution provides that Congress “may determine the Time of chusing the Electors and the Day on which they shall give their Votes, which Day shall be the same throughout the United States.” It seems fairly clear that this provision only requires uniformity with respect to the day on which presidential electors cast their votes; Congress is not prohibited from authorizing states to choose their presidential electors at different times. Thus, Congress could, if it wished, provide that the time of election in particular states or jurisdictions could be changed or extended based on the occurrence of a disaster, natural or otherwise. See CRS Report, Postponements and Rescheduling of Federal Elections 4 (2004) (Congress could “pass legislation regarding dates, and emergency postponements and/or rescheduling times for elections to federal offices”).

Current federal law, however, has no explicit provisions for postponing a presidential election under any circumstances, nor does it delegate to the President or the executive branch any authority to postpone or extend any federal election due to emergency or any other reason. (Huefner notes that, despite suggestions that it do so, Congress has adopted “no federal contingencies to deal with disasters or emergencies”).

Moreover, there is no constitutional text or historical precedent to suggest that the President has inherent authority to alter the timetable of any election, state or federal. Thus, it seems clear, as this Heritage blog post argues, that there is no federal executive authority to alter the election schedule in response to a natural disaster or other emergency.

It is less clear whether states have the authority to postpone presidential elections in emergency situations. In the absence of federal legislation, states would certainly have this authority because the appointment of its presidential electors is a state responsibility, to be accomplished “in such Manner as the Legislature thereof may direct.” See J. Goldfeder, Could Terrorists Derail a Presidential Election?,  32 Fordham Urb. L.J. 101, 123 (2004) (“The United States Constitution and federal statutes grant the several states dominant decision-making authority in presidential elections.”).

However, federal law mandates that “[t]he electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” 3 USC §1. This exercise of the Congress’s power to “determine the Time of Chusing the Electors” constrains the discretion the states could otherwise exercise with regard to scheduling of elections.

The next section of the U.S. Code, 3 U.S.C. §2, seems to give the states some wriggle room: “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.” The requirement of appointing electors on the specified Tuesday in November is thus not absolute, but the scope of the exception is far from clear.

First, does this exception require that the state actually hold an election on the day prescribed by law? Read literally, it appears to, and thus would seem to preclude the state from simply postponing the entirety of the election. In itself, though, this might not be much of a limitation because the state could simply hold a pro forma election (say in which one polling station was open) on the prescribed day.

Perhaps a more difficult barrier to overcome is the requirement that the election “fail[] to make a choice on the day prescribed by law.” What does this language mean? I was under the impression that this provision was directed primarily at the situation where state law required a majority vote for an election, and no candidate (or slate of electors) received a majority vote on election day. This commentator, however, says “[t]he historical record indicates that Congress thought this statutory language included cases where floods or inclement weather prevented ‘any considerable number’ of voters from reaching the polls and that, in such cases, Congress wanted to confirm the power of the state’s ‘legislature to authorize the continuance of the elections’ past the congressionally prescribed election day. This legislative history indicates that an election might ‘fail to make a choice’ even though there had been an election with a certifiable result, at least when that result was distorted by flooding or bad weather.”

I must say that if Congress intended this provision to permit states to extend an election when “any considerable number” of voters are prevented from reaching the polls, it could have chosen better language to express this intent. Nevertheless, it seems plausible that the statute would be construed broadly in such a way as to advance two federal objectives reflected in the overall statutory scheme; (1) to defer to state rules and procedures regarding the appointment of presidential electors and (2) to ensure that each state is able to cast its constitutionally authorized electoral votes on the day prescribed by federal law (i.e., the first Monday after the second Wednesday in December, which this year will be December 17).

Which brings us to New York Code 3-108, which provides:

A county board of elections, or the state board of elections with respect to an election conducted in a district in the jurisdiction of more than one county board of elections, may determine that, as the direct consequence of a fire, earthquake, tornado, explosion, power failure, act of sabotage, enemy attack or other disaster, less than twenty-five per centum of the registered voters of any city, town or village, or if the city of New York, or any county therein, actually voted in any general election. Such a determination by a county board of elections shall be subject to approval by the state board of elections. If the state board of elections makes such a determination, it shall notify the board of elections having jurisdiction in that county that an additional day of election shall be held. . . .

Note that this provision has some deficiencies from the point of view of its validity under 3 USC §2. The New York statute does not say that the failure of at least twenty-five percent of voters in a particular jurisdiction to vote, as the result of a disaster, prevents the state from making a choice on election day. Presumably, the provision applies even if there are not enough affected voters to change the outcome on election day.

It may be argued that the New York legislature has implicitly determined that the state has failed to make a choice under these circumstances. But this points up another issue- if the legislature can determine that an election can be extended if an insufficient percentage of registered voters actually vote, what is there to limit this to an emergency situation? In theory, a state could extend its voting period for as many days as it took for a specified percentage of registered voters to vote (so long as it finished by the time the presidential electors are required to vote), whether or not there was a disaster. This could substantially undermine the federal requirement of a uniform day of election.

If New York provides an additional day of voting as a result of Hurricane Sandy, it is unlikely to have any effect on the choice of New York’s electors, or on the ultimate selection of the president. But it will no doubt give rise to some interesting legal debates.

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Could Biden Vote Under the 12th Amendment?

In a previous post, we briefly discussed the question of whether the Vice-President could vote in the Senate in the event of an electoral college tie followed by a tie vote in the Senate to elect his successor under the 12th Amendment. Over at Balkinization, Professor Gerard Magliocca asks the same question.

My view, which I sketched out more in comments to Magliocca’s post, is that the 12th amendment does not permit the Vice-President to vote for three reasons. First, as a textual matter, the VP’s vote wouldn’t give the winner a “majority of the whole number.” The 12th amendment says that, if no one receives an electoral college majority for Vice-President, “the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.”  The Vice-President is not a Senator and therefore not part of the “whole number;” thus, his vote would seem irrelevant to obtaining the necessary majority.

Second, to the extent that the 12th amendment is ambiguous on this point, there are strong reasons not to interpret it as authorizing the VP to vote.  At the time the 12th amendment was adopted, it was not yet established that the VP could vote on matters beyond ordinary legislation. Moreover, it seems unlikely that the framers of the 12th amendment would have intended the VP to vote in an election in which he would so often be an interested party (just as members, at least in the House, are not supposed to vote on matters relating to their own seats). Thus, the 12th amendment’s silence should not be taken as an implicit authorization for the VP to vote.

Third, Article I prohibits the Vice-President from voting unless the Senate is “equally divided.” Thus, if one Senator did not vote, resulting in a 50-49 vote, the VP could not vote, yet there would not be the necessary majority to make a choice.

I think these arguments are pretty strong. (This blog, although written by a non-lawyer, makes a similar case). It does not seem Professors Magliocca or Sandy Levinson are persuaded, but Professor Michael Ramsey is.

If others in the law professoriate weigh in, let me know in the comments.

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Recess Appointments Panel this Thursday

This Thursday, October 25, from 9am to 10:30am, I will be moderating a panel discussion at the ABA Administrative Law Conference entitled “Recess Appointments: Legal Challenges to President Obama’s appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.” The panelists will be Ambassador C. Boyden Gray and Professor Michael Gerhardt, both of whom testified before Congress earlier this year regarding the recess appointments (Gray is also representing the plaintiffs in the legal challenge to the CFPB).

The conference is taking place at the Capital Hilton; registration information is here.