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TURNER: Our lawbreaking Congress

- The Washington Times - Friday, March 19, 2010

As a scholar who has studied and revered the Constitution for more than four decades, watching the behavior of our Congress in recent years has been all too often a depressing experience. One wonders whether some legislators have even bothered to read the Constitution, or if the problem is they simply don't care about the oath they took to support it.

While doing research for my doctoral dissertation many years ago, I had the pleasure of reading extensively from the Annals of Congress, notes from Cabinet meetings of early presidents, and a great deal of other historical material while seeking to understand portions of our Constitution. In the process, I found myself marveling both at how remarkably well-read the Framers were - encountering frequent references to the writings of Locke, Montesquieu, Blackstone, Vattel, and other prominent 17th- and 18th-century thinkers - and also at the high principles repeatedly expressed by members of both political branches of our government when novel issues surfaced.

Whether in the executive or legislative branch, our Founding Fathers were anxious to reach conclusions that were consistent with the meaning of the new Constitution and respected the powers of the other branches and the people. George Washington would suggest that an issue be put off for several days to permit Cabinet members to ponder decisions that might affect future interpretations of the Constitution, and James Madison raised similar cautions in Congress.

Sadly, the latest parliamentary shenanigans in the House, to pretend that the Senate health care bill has already been signed into law so that the (non)law can be "amended" immediately to secure enough House votes for passage, is but par for the course. It is no better than Senate Majority Leader Harry Reid's attempt to use Congress' rule-making power to deny future Congresses their constitutional right to repeal or amend a previous law by majority vote. Section 3403 of the bill passed by the Senate provides: "It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment or conference report that would repeal or otherwise change this subsection." The Constitution can't be changed by statute, and it certainly can't be changed by amending House or Senate rules.

Article I, Section 7 of the Constitution sets forth detailed requirements for the making or amending of a law, specifying that "Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary" shall be presented to and approved by the president (or enacted over his veto) - so as to prevent unprincipled legislators from bypassing the procedural necessities by the kind of semantical chicanery currently being contemplated by House leaders.

In the Congressional Record dated June 11, 1976, there are lengthy remarks by my former employer, Sen. Robert P. Griffin, explaining why "legislative vetoes" - statutory provisions that also violate Article I, Section 7 by giving legal effect to acts of one or both legislative chambers without ever being submitted to the president - are unconstitutional. During that debate, Mr. Griffin asked me to briefly explain the constitutional issue to one of his Senate colleagues who had not yet voted. After politely listening to me for a few minutes, he cut me off and explained: "Well, you may well be right. But it is the job of the Supreme Court to decide whether a statute is unconstitutional. My job is to vote for bills I think are in the best interest of my constituents." I was briefly tempted to remind him that he had sworn a solemn oath to support the Constitution and that the court was there as a safety valve to make certain legislators did not err in their constitutional interpretations, but from his expression it seemed clear that would have served no purpose but to annoy him.

Seven years later, by a 7-2 decision, the Supreme Court in the landmark case of INS v. Chadha echoed Mr. Griffin's analysis and struck down legislative vetoes as unconstitutional. But Congress didn't seem to care. Although Justice Byron White began his Chadha dissent by noting that the court had "sound[ed] the death knell for nearly 200 other statutory provisions ... operating on such varied matters as war powers," Congress wasn't listening.

Less than two years ago, the bipartisan and blue-ribbon National War Powers Commission - including among its distinguished members such stalwarts of legislative power as Lee Hamilton, Abner Mikva and Slade Gorton - made specific reference to the legislative veto in Section 5(c) of the 1973 War Powers Resolution in unanimously concluding both that the statute was unconstitutional and that it should be repealed.

But on March 4 of this year, House Judiciary Committee Chairman John Conyers and 16 of his colleagues introduced a legislative veto expressly pursuant to Section 5(c) pretending to direct the president to withdraw all U.S. armed forces from Afghanistan. (One wonders if any of them were aware that on Aug. 17, 1787, the Constitutional Convention rejected a proposal that Congress be given the power to end war because it had the power to commence it. After a brief debate, the idea was defeated by a vote of 0-10.)

Sadly, such flagrantly unconstitutional legislative vetoes have been more the rule than the exception since the Supreme Court in 1983 held them to be unconstitutional. Indeed, since that decision was handed down, Congress has enacted far more than 500 new legislative vetoes, each time thumbing its nose at the Constitution and the Supreme Court. Legislative vetoes are by far the most common reason for presidential "signing statements" refusing to execute flagrantly unconstitutional legislative acts.

At some point, if we are to have any chance of preserving our magnificent Constitution, the American people are going to have to start saying "no" and holding legislators accountable at the polls for violating their oaths of office. The senators and representatives we elect were intended to be servants of the people, not a special class of aristocrats empowered to rule our lives while remaining aloof from the very laws they enact. Writing in Federalist No. 57, James Madison assured the American people that one of the checks against legislative abuse of power was that Congress could "make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society." One can only wonder what the Obamacare vote would be if it applied to members of Congress and their staffs.

After nearly four decades of watching our elected representatives flout their solemn duty and evade the burdens they impose upon the rest of us, I have finally concluded that the time has come to start voting against incumbents who behave as if they are the rulers rather than the servants of the American people.

Robert F. Turner served as acting assistant secretary of state for legislative affairs in the Reagan administration and is a professor at the University of Virginia. The views expressed are his own.