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Posted at 05:20 PM ET, 03/31/2011

Is the ‘Government Shutdown Prevention Act’ constitutional?

House Republican leaders’ announcement that they plan to vote Friday on a resolution they’ve termed the “Government Shutdown Prevention Act” was greeted by an uproar over whether it passes constitutional muster.

The resolution, H.R. 1255 (the text of which can be found here), states that members of Congress would not receive their pay during any period in which the government is forced to shut down. It also states that if the Senate does not pass its own government-funding resolution by April 6, then H.R. 1, the funding bill passed by the House last month that would cut $61 billion from this fiscal year’s budget, would become law.

That, many Democrats noted Wednesday, would violate the Constitution, which calls for a bill to be passed out of both chambers by majority vote and signed by the president before it is enacted into law.

So is the measure constitutional?

A look at the resolution’s “Constitutional Authority Statement” – a feature required of all legislation in the 112th Congress due to new rules approved by the House earlier this year – answers that question in part, but also raises some new questions.

The Constitutional Authority Statement says that the portion of the measure that would declare H.R. 1 law without a vote of the Senate “is enacted pursuant to the rulemaking powers provided in clause 2 of section 5 of article I of the United States Constitution in furtherance of the appropriation power provided in clause 7 of section 9 of article I of the Constitution and spending power provided in clause 1 of section 8 of article I of the Constitution.”

Article I, Section 5, Clause 2 of the Constitution states that:

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

Article I, Section 9, Clause 7 states:

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

And Article I, Section 8, Clause 1 reads:

“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; but all Duties, Imposts and Excises shall be uniform throughout the United States.”

Asked Thursday about those specific clauses, a House Republican leadership aide explained the constitutionality argument in this way:

“This constitutional provision applies to both member pay and each body setting their own rules:

1. The chambers both determine the rules of their own proceedings, which include payment disbursements. (We’re not changing the level of compensation here, just how it’s disbursed during shutdown.)

2. The chambers determine the rules of their own proceedings here by establishing how HR 1 would become law by both passing (and the President signing) HR 1255, and the Senate taking no further action on appropriations by April 6.”

The second point is the one that applies to the argument over H.R. 1 becoming law.

Essentially, it means that if only the House passed a bill stating that H.R. 1 would become law with no action by the Senate or the president, the enacting of H.R. 1 into law would be unconstitutional.

But, if the Senate were to pass H.R. 1255 (and if the president were to sign it), the Senate would be determining its own rules for how H.R. 1 would become law (i.e., by the Senate not passing its own funding bill by April 6). So, that would be in accordance with the Constitution, the House Republicans’ argument goes.

In order for H.R. 1255 -- the measure stating that H.R. 1 can become law through only a vote of the House -- to become law, H.R. 1255 would have to pass both the House and the Senate and be signed by the president.

Nothing will happen if H.R. 1255 is only taken up by the House and not the Senate.

What it all boils down to is that the provision calling for H.R. 1 to become the “law of the land” (as House Majority Leader Eric Cantor (R-Va.) termed it Wednesday) is moot unless the new measure is approved by both the Senate and the president — an unlikely prospect.

House Democrats at a Rules Committee meeting on the measure Thursday continued to raise doubts about the measure’s constitutionality.

Florida Democratic Rep. Alcee Hastings called the measure a “publicity stunt” and spent several minutes in the committee meeting reading from the Schoolhouse Rock song, “I’m Just a Bill.”

“The fact of the matter is that all of us learned that in elementary school, and all of us in this Rules Committee, if there is a serious affront to the American public, it’s that we’re taking this up in the Rules Committee,” Hastings said.

Rep. Rob Andrews (D-N.J.) charged that the measure is “a ransom note.” And Rep. Louise Slaughter (D-N.Y.), the top Democrat on the Rules Committee, called the resolution “outrageous” and said it “will stand in the annals of time to come as one of the largest wastes of time.”

The House is slated to vote on the measure Friday. What are your thoughts on the constitutionality issue? The comments section is open for business.

By  |  05:20 PM ET, 03/31/2011

 
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