Tuesday, January 22, 2013

Is the Debt-Ceiling Bill Designed to Self-Destruct?

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."



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