Monday Obscure Constitutional Provision Blogging

Young Ezra:

My ace reporting reveals that one element of the health reform strategy Edwards will announce today is a bill, to be submitted on his first day in office, ending health care coverage for the president, the Congress, and all political appointees on July 20th, 2009, unless they've passed health reform that accords with four non-negotiable principles Edwards will detail in the speech. If they don't pass comprehensive health reform, they lose their coverage until they do.

Not to get too wanky here, but I'm pretty sure this violates the 27th Amendment to the constitution.

Comments

Well, it violates Article II, Section I for the same reason.

Posted by David Nieporent | September 17, 2007 10:28 AM

All they have to is make it for future office holders. So, that Reps and Senators in the 2030s will really have to get serious about health care.

Posted by Jeffrey Davis | September 17, 2007 10:31 AM

It might very well violate the 27th amendment. And if Congress wants to prove that it does, they're welcome to take it to court while the country goes without health care. I'm betting Edwards comes out on top of that theoretical tussle, though.

Posted by Christmas | September 17, 2007 10:32 AM

Uh, it seems to me that, if congress is foolish enough to pass this bill, and the president dumb enough to sign it, then on 7/20/09, an election will have intervened.

Posted by southpaw | September 17, 2007 10:32 AM

Uh, it seems to me that, if congress is foolish enough to pass this bill, and the president dumb enough to sign it, then on 7/20/09, an election will have intervened

Say what?

Posted by Christmas | September 17, 2007 10:33 AM

ah, whoops, his first day as president. damn!

Posted by southpaw | September 17, 2007 10:33 AM

And here Edwards calls himself a lawyer! I just call him incompetent.

Posted by Obama Boy | September 17, 2007 10:35 AM

The main thing is: Senator Clinton's been saying she'll get around to health care sometime in the next 8 years or so, if elected.

Edwards is saying "action, first day."

Posted by Garuda | September 17, 2007 10:36 AM

Congress has found a way to dodge the 27th amendment through "cost of living" increases, which are technically not (according to congress) pay raises.

Posted by BF | September 17, 2007 10:36 AM

I'm sure one could make an argument that health insurance is not "compensation".

Posted by Nicholas Beaudrot | September 17, 2007 10:36 AM

Well, the automatic "Cost of Living Increases" pretty obviously violate the 27th Amendment, too, yet the Supreme Court has flatly refused to do anything about them. And since the point is to draw attention to health care coverage, a lawsuit challenging such a provision's unconstitutionality would still be a win. Heck, theoretically, the inevitable Republican filibuster Democratic failure to pass would be good press, if the Edwards White House were able to point out Republican obstructionism more effectively than the Democratic Congress has.

And as far as Article II, Section 1, Clause 7, I'm pretty sure that's always been taken to apply explicitly to the President's salary. Otherwise there would have to be even more crazy-detailed accounting done on Presidential perqs than there is already. Hmm, perhaps the same argument could be applied to compensation for members of Congress.

Posted by mds | September 17, 2007 10:38 AM

Actually, there is a fairly strong historical argument, made in Boehner, that the 27th amendment was not meant to apply to pay decreases (and only apply to pay increases) based on Madison's comments to the original amendment. See Boehner.

Thanks.

Posted by ps | September 17, 2007 10:41 AM

The federal government pays around 2/3 of the cost of participation in the federal health plan, the employee pays the other third. Just eliminate the health coverage and pay out the government contribution and you will not have changed compensation.

Posted by Virginia | September 17, 2007 10:41 AM

I would actually be interested in seeing a challenge of the 27th Amendment, given its unusual origins. I have a hard time seeing the Senate passing the uncoverage bill in six months, though, let alone a major health care bill.

Posted by Gabriel | September 17, 2007 10:42 AM

sorry, but it *is* a bit wanky. You have to try pretty hard to miss the point of this.

Posted by jonnybutter | September 17, 2007 10:42 AM

Madison's comments would only be relevant if the text were ambiguous.

Here, it is not.

Posted by Geek, Esq. | September 17, 2007 10:42 AM

You have to try pretty hard to miss the point of this.

Yes - the point is that *of course* John Edwards can pay for his own health care - he can afford a $500 haircut! But what about the poor congresscritter that can't afford a 20,000 square foot mansion? Is he thinking about their children?

Posted by GD | September 17, 2007 10:45 AM

All Edwards would have to do to make is constitution is say that the cutoff wouldn't go into effect until 2011. No big deal.

In any case, wouldn't you love to see the GOP making an obscure constituional case to oppose this bill?

Camp Edwards has been on its game the past couple of weeks.

Posted by david mizner | September 17, 2007 10:52 AM

To solve the potential 27th Amendment problems, what Edwards should do is ask Reid and Pelosi to introduce and pass it now, rather than after Edwards is elected, but with the proviso that the law comes into effect if (and only if) Edwards is elected.

(This is all moot, since Edwards is not going to be elected, but anyway...)

Posted by Al | September 17, 2007 10:53 AM

Finally! What a great idea. Why are we funding their healthcare? I want for me and mine what we've been paying for for them and theirs.

Posted by strait woman | September 17, 2007 11:02 AM

Okay, it would never survive a legal challenge, but it's a good attention-getter.

Posted by Virginia | September 17, 2007 11:04 AM

Well the text looks ambiguous to me.

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Is health insurance 'compensation'? Where do you draw the line between that and say the House Gym. Does anyone really think it would be a violation of the 27th amendment to impose fees for the use of the gym? Or to increase meal prices in the subsidized House Cafeteria? Or adjust allowances for travel?

Certainly health insurance is generally considered part of a "compensation package" which is far from saying that is is "compensation" by definition. That is what you have lawyers for.
Edwards doesn't have a nice house by being unfamiliar with the Constitution.

Posted by Bruce Webb | September 17, 2007 11:22 AM

Guys, I think you are emphasizing the legal impediments, which is ass backwards. Who cares if it's unconstitutional? It would be effective politics.

Posted by Freddie | September 17, 2007 11:23 AM

wAnky or wOnky?

Does that make you a regular beltway wonker?
Wonker of the Day!

Posted by EthanS | September 17, 2007 11:31 AM

There's a good argument that a COLA is not a pay increase at all; rather, if you do not get a COLA, your pay has been decreased.

In any case, if the 27th Amendment is an issue, Edwards can change the date to January 2011. Then a congressional election will have intervened.

Posted by Joe Buck | September 17, 2007 11:33 AM

yeah, but it's pretty obvious that even by this argument, congressional COLAs have outpaced inflation, thus constituting a pay raise.

Posted by BF | September 17, 2007 11:46 AM

There's a good argument that a COLA is not a pay increase at all; rather, if you do not get a COLA, your pay has been decreased.

Except that this is also different from how the President's fixed compensation is treated.

Posted by mds | September 17, 2007 11:52 AM

pretty sure the only people with standing to sue over this would be individual congressmen, and even if they had the cojones it would probably be muted by an intervening election.

Posted by mike | September 17, 2007 1:07 PM

uh... mooted.

Posted by mike | September 17, 2007 1:08 PM

"Guys, I think you are emphasizing the legal impediments, which is ass backwards. Who cares if it's unconstitutional? It would be effective politics. "

Call me crazy, but I don't think it's a good idea for a presidential candidate to be proposing unconstitutional laws.

Regardless of the constitution, though, it's a lousy political stunt. For a start, it's not likely to get passed. Second, people in Congress can afford healthcare, even without insurance. This is hardly all that much of an incentive to get them to act on healthcare. Third, why should "all political appointees" suffer because of the fecklessness of Congress and/or the president.

Posted by Ginger Yellow | September 17, 2007 1:26 PM

This disqualifies Edwards for office, imo.

He's dead, dead last now in my rankings. Enough of Deciders who treat the Constitution as an afterthought.

Posted by Geek, Esq. | September 17, 2007 1:55 PM

This is the sort of crap that has given "populism" such a bad name. It is a disturbing precedent to think that the President will try to punish legislators pecuniarily for not doing what he wants. Edwards is a demagogue.

Posted by Pithlord | September 17, 2007 2:27 PM

Second, people in Congress can afford healthcare, even without insurance.

Yes and no. They're rich, but they're also mostly old and, in many cases, fat. Healthcare for old fat people is expensive, even on a six figure salary. I think they'd feel it.

Posted by digamma | September 17, 2007 2:37 PM

Geek - you say that as if this has actually changed your opinion.

Posted by DrFrankLives | September 17, 2007 4:08 PM

As President, John Edwards could submit that, and then use the bully pulpit to round up public support for the idea. If he can build support from the public, as well as from state officials throughout the country, it really doesn't matter whether it's "constitutional" or not.

Congress would be pressured into acting soon, and who knows? With all of the crap that Bush has done, and the American people have put up with, this is something they'd probably actually agree with him doing.

If John Edwards was serious about actually doing this, though, he'd find another way to do this other than legislatively.

He'd just have to be careful in how he did it. It must be almost totally backed by the people, otherwise he sets a dangerous precedent.

Posted by OEST | September 17, 2007 4:13 PM

Guys, I think you are emphasizing the legal impediments, which is ass backwards. Who cares if it's unconstitutional? It would be effective politics.

Posted by Freddie | September 17, 2007 11:23 AM

Exactly, that's the entire point of being President and having a megaphone.

Bush, who actually said, "stop throwing the Constitution in my face, it's just a Goddamned piece of paper," has done more damage than good simply by pimping Congress and having Congress roll over to his demands.

Maybe John Edwards believes that based on Congress' track record, he could make demands as well and have Congress roll over out of fear.

Only difference, the media would hate John Edwards, instead of protect him like they have done idiot Bush. If they talked about half of what Bush has done, millions of Americans would have rushed the White House by now and removed him from it.

Posted by OEST | September 17, 2007 4:18 PM

it's a lousy political stunt. For a start, it's not likely to get passed.

It doesn't matter if it passes or not.

I'd say it more than a bit myopic to equate Bush's extra-constitutional activities with this proposal from Edwards. In fact, it's ridiculous. Lighten up boys.

As for demogogery, we in the US are confronted with a large structure 25 years of a politics based on the rankest and most unabashed demogogery, built (unlike in Canada, where the New Right is much weaker). Being a reactionary demogogue has been fashionable and lucrative for quite a while here. The more shameless, the more you have been percieved as 'smart' and 'tough'. How do you break that spell? By reacting to Bush, if only to be the opposite? No. By ignoring him as much as possible and engaging voters. Stunts like this might be too crude for some of you, but I promise that a lot of ordinary voters will like it a lot - and well they should. If speaking to voters in 'language' they understand is demogogery, then I'm all for demogogery. Edwards is not Huey Long nor Father Coughlin nor George W. Bush, after all.

If you're worried about demogogery, elect HRC or Mitt Romney in '08; don't reform the tax code, don't dramatically change the way campaigns are financed, and don't create universal health care. Then look for a real, scary demogogue in a few years (or elect Giulianni and get one immediately!).

Posted by jonnybutter | September 17, 2007 4:36 PM

Sorry if this was already addressed, but health insurance, and other forms of insurance provided by employers (even government employers), are not generally considered compensation under American law. I am not so sure that this would be unconstitutional. It would be a technical legal issue. And yes, I am an employment lawyer.

Posted by Jim Barna | September 17, 2007 5:10 PM

1. I don't take for granted that "compensation" in the constitutional sense, for either Congress or the President (and is there any reference at all to compensation of the Vice President in the Constitution?), includes "benefits" or "perquisites" of any kind.

2. Does Congress's (voluntary) enactment of a law to use public funds to pay for some expense, that individual members of Congress would otherwise have to pay for themselves out of their own wealth, create an enforceable entitlement to that benefit against the Government?

3. Did Congressmen have a "right" to these "fringe benefits" before the 27th Amendment? If not, does that mean the 27th Amendment actually gave Congressmen a legal entitlement that they had never had before? And if that was understood to be one of the effects of the 27th Amendment, who in the 1980's or 1990's would have voted to ratify it?

4. Does anyone have any problem with immediately effective reductions of compensation for cabinet members and other "political officeholders" - i.e., those who are not elected?

5. The Constitution (Art. I Section 6) plainly did not prohibit immediate reductions by law in the compensation of Congress, while it explicitly does prohibit it for the President (Art. II Section 1). I could be persuaded by solid evidence to the contrary, but I find it hard to believe that James Madison (who wrote the 27th Amendment?) or anybody else in the First Congress was concerned about prohibiting immediately effective pay cuts for Congress, since it was the affected Congressmen themselves who would have to enact the pay cut. Who would want to stop them, if that's what they voted to do? Who would have considered that a problem or a defect in the original text that needed to be taken care of by amendment? And in the absence of the 27th Amendment, the same or any subsequent Congress could at any time revoke the pay cut or even raise the compensation higher than it was to begin with. So there is no reason why "varying" must be taken to include "decreasing" as well as "increasing."

6. Does the 27th Amendment prohibit repealing a pay cut immediately, so long as the new "compensation" of Congressmen doesn't exceed what it was at the beginning of their current term?

Posted by spinozista | September 17, 2007 5:32 PM

This is even wonkier (wankier?) than Matt, but to build on Jim Barna's point: yes, some employer-provided insurance is not taxable income, but only when the Internal Revenue Code specifically includes employer-paid premiums from gross income. For example, Section 106 excludes certain health insurance premiums paid by employers from gross income. (Plans to make employer-provided health insurance taxable would remove this exception.) If these sections didn't exist, the premiums would be including in gross income--i.e., "income from whatever source derived." IRC sec. 61. Purely from this perspective, it seems like there's an argument that health benefits are compensation, even if not taxable.

Bruce makes some excellent points about gym memberships, cafeterias, etc.; these fringe benefits would also be taxable if there were not specific exceptions in the Code (in Sections 132 and 119). (There may also be some special rules that apply to members of Congress that make these items nontaxable, but the point remains that they are income in theory, even if not taxable income because specific exceptions reply.)

What this all has to do with the 27th Amendment I truly don't know; I defer to my constitutional betters.

Posted by Sarah L. | September 17, 2007 7:05 PM