Tuesday, January 22, 2013
House Republicans added a provision to the temporary debt-ceiling increase in H.R. 325 that would halt congressional salaries if Congress fails to pass a budget this year. But Michael Froomkin argues at his blog, Discourse.net, that this provision, a violation of the Twenty-Seventh Amendment, could torpedo the debt-ceiling increase itself, if the provision's not severable from the rest of the bill. In other words, if a disgruntled member of Congress sued after he or she didn't get paid, a ruling that the pay holiday violated the Twenty-Seventh Amendment could take down the temporary debt-ceiling increase in the bill, as well. The result: A court, not Congress, would invalidate the debt-ceiling increase, and Congress could walk away with clean hands. As Froomkin suggests, a strategically minded opponent of the debt-ceiling increase might even have designed it this way.
As Froomkin argues, the severability question all depends on how tightly the debt-ceiling increase and the congressional pay-stoppage are linked. And Froomkin says that the more that members of Congress link the two provisions in their arguments for the bill, the more likely it is that a court would find the pay-stoppage non-severable.
The other piece, of course, is the Twenty-Seventh Amendment. There's not a lot of case-law out there--just one case, in fact, with rulings from the D.C. District and D.C. Circuit courts (and with a congressman named John Boehner as plaintiff)--but that case and the Amendment's plain text suggest that the pay-stoppage could well violate the Amendment. H.R. 325 seeks to dodge this by holding halted congressional pay in escrow. But Froomkin argues that that gambit is unlikely to work--that halting salary and holding it in escrow is by any reckoning "varying the compensation of the Senators and Representatives."