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Guest Commentary: Introducing “Article V 2.0″: The Compact for a Balanced Budget | The Pelican Post










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Guest Commentary: Introducing “Article V 2.0″: The Compact for a Balanced Budget

Budget, Constitution, Featured, Spending — By on August 13, 2014 2:36 pm
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By Nick Dranias

General Counsel & Constitutional Policy Director, Goldwater Institute

Introduction

What if the states could advance and ratify a powerful federal balanced budget amendment in just twelve months? It could happen with a new approach to state-originated amendments under Article V of the United States Constitution. At the stroke of their pens on April 12 and 22, 2014, respectively, Governors Nathan Deal[1] and Sean Parnell[2] formed the “Compact for a Balanced Budget” among the States of Georgia and Alaska. Unlike any other effort to reform Washington from the states using their Article V amendment power, the formation of the Compact for a Balanced Budget changes the political game almost immediately.

 

An Immediate Platform for Reform

Alaska and Georgia are expected to organize the Compact’s interstate commission before the summer of 2014 ends. Think of the Compact Commission as an outside-the-beltway Erskine-Bowles Commission that can do much more than “jawbone” hypothetical fiscal reforms—it will marshal a state-based effort to propose and ratify a powerful Balanced Budget Amendment. Although it starts operating with appointees from just two states, eventually the Commission will expand to include appointees from three states—and possibly more.[3] It is designed to unify the states and lead the charge for fiscal reform shoulder-to-shoulder with allied legislators, citizens, and public interest groups—immediately changing the political game in Washington and the nation.

 

The Amendment in a Nutshell

With the Compact’s Balanced Budget Amendment in place, Washington would no longer have the ability to set its own credit limit and write itself a blank check. The states would become an active board of directors charged with keeping an eye on our wayward federal CEO and staff. Debt would finally become scarce. Priorities would have to be set. Sustainable federal programs would have to become the norm. A broad national consensus—not midnight-hour panic—would have to support any further increases in the national debt. Here’s how it would work:[4]

First, section 1 of the amendment would ensure that Washington cannot spend more than what taxes bring in at any point in time, with the sole exception of borrowing under a fixed debt limit.[5]

Second, section 2 would put an initially fixed limit on the amount of federal debt “equal to 105 percent of the outstanding debt” at the time of ratification.[6] The extra 5% borrowing cushion would provide approximately 1.5 to 2 years of borrowing capacity based on the current annual deficit rates ($500 to $650 billion per year), in order to give Congress a transition period in which to develop a proposal to fix the national debt.

Third, section 3 would require a referendum of the state legislatures to approve any increase in the fixed constitutional debt limit within 60 days of congressional proposal of a single-subject measure to that effect.[7] Because of the flexibility made possible through this referendum process, the proposed amendment does not include any emergency spending or borrowing loophole. Although flexible, requiring state approval for debt limit increases would make it substantially more difficult to increase the national debt because two hurdles (congressional and state approval) are obviously more difficult to jump than the status quo of one. Moreover, by requiring a nationwide debate in 50 state capitols over any increase in the constitutional debt limit, the proposed amendment would shine more light on national debt policy and give the American people a greater chance to stop needless increases in the debt limit. And by requiring state approval within 60 days, there will be a strong default position disfavoring any increase in the federal debt limit.

Fourth, section 4 would compel spending impoundments by the President when 98 percent of the debt limit is reached, ensuring that Washington is forced to reduce spending long before borrowing reaches its debt limit—preventing any default on obligations.[8] Abuse of such impoundment power is checked and balanced by empowering simple majorities of Congress to override the President’s proposed impoundments within 30 days without having to repeal the underlying appropriations.[9] This provision would start a serious fiscal discussion with plenty of time in which to fix the national debt.

Fifth, if new revenues are needed to avoid borrowing beyond the debt limit, the amendment would ensure that all possible spending cuts are considered first. It does this by reserving the current simple majority rule for new or increased taxes only for completely replacing the income tax with a non-VAT sales tax (“fair tax” reform), repealing existing taxation loopholes (“flat tax” reform), and increasing tariffs or fees (the Constitution’s original primary source of federal revenues). All other revenue increases would have to secure two-thirds approval from Congress. Any push for new revenue through these narrow channels will generate strong special interest pushback, strongly incentivizing spending cuts before taxes are raised.

 

The Next-Generation Article V Movement

The Compact for a Balanced Budget uses an interstate agreement to advance and ratify this powerful amendment proposal because a compact vastly simplifies the Article V convention process. Without a compact, the Article V convention approach would first require two-thirds of the state legislatures to pass resolutions applying for a convention (34 enactments). Second, at least a majority of states would need to pass laws appointing and instructing delegates (26+ enactments). Third, Congress would need to pass a resolution calling the convention. Fourth, the convention would need to meet and actually propose an amendment. Fifth, Congress would need to pass another resolution to select the mode of ratification (either by state legislature or in-state convention). And sixth, three-fourths of the states would then need to pass legislative resolutions or successfully convene in-state conventions that ratify the amendment (at least 38 enactments). That’s over one hundred legislative acts and six legislative stages.

By contrast, the Compact consolidates everything states do in the Article V convention process into a single agreement among the states that is enacted once by three-fourths of the states[10] and everything Congress does in a single concurrent resolution passed just once with simple majorities and no presidential presentment. The Compact is able to pack both the front and back ends of the Article V convention process into just two overarching legislative vehicles by using the “secret sauce” of conditional enactments. For example, using a conditional enactment, the “nested” Article V application contained in the Compact only goes “live” once three-fourths of the states join the compact (three-fourths, rather than two-thirds, is the threshold for activating the Article V application because the compact is designed to start and complete the entire amendment process).[11] The Compact also includes a “nested” legislative ratification of the contemplated Balanced Budget Amendment, which only goes “live” if Congress selects ratification by state legislature rather than in-state convention.[12] Correspondingly, using conditional enactments, the nested “call” in the congressional counterpart resolution only goes live once three-fourths of the states join the Compact.[13] Likewise, the nested selection of legislative ratification in the congressional resolution only becomes effective if, in fact, the contemplated amendment is proposed by the convention organized by the Compact.[14]

By using an interstate agreement and conditional enactments to coordinate and simplify the state-originated Article V amendment process, the Compact approach to Article V reduces the number of necessary legislative enactments, stages, and sessions from 100+ enactments to 39 (38 states joining the compact, one congressional resolution), from six legislative stages to three (passage of compact, convention proposal of amendment, congressional passage of resolution), and from five or more session years to as few as one (the current target is three years). Fortunately, there is perhaps no more universally accepted legislative provision than the conditional enactment. Conditional enactments are common components of congressional legislation, including legislation approving interstate compacts,[15] as well as within many existing interstate and federal-territorial compacts.[16] In fact, the U.S. Supreme Court and courts in 45 states and territories have recognized the viability of conditional enactments for a wide range of both state and federal legislation,[17] including state laws that were enacted contingent on the passage of new federal laws.[18] Because a state’s authority over whether to apply for an Article V convention or whether to legislatively ratify an amendment is as plenary as any other form of legislation, such case law sustains the Compact’s use of conditional enactments.

 

Article V: Not Meant to Be an Insurmountable Obstacle Course

Nevertheless, the Compact for a Balanced Budget has been criticized as violating the text of Article V by avoiding a difficult, multi-staged, multigenerational amendment quest. But this criticism is meritless. Through the operation of conditional enactments, the Compact conforms strictly to the text of Article V. For example, the Compact’s pre-ratification is entirely contingent on Congress first effectively selecting legislative ratification of the contemplated amendment, which, in turn, presumes the prior proposal of the amendment either by Congress or an Article V convention. In other words, because of the foregoing conditional enactment, the pre-ratification will go live (if it ever goes live) only in the precise sequence required by the text of Article V.

Furthermore, the streamlined, coordinated Compact approach to Article V is more consistent with the actual spirit of Article V as described by advocates of ratification, than the multi-staged legislative obstacle course which a non-compact approach to Article V necessitates. The amendment process under Article V was not meant to be exceedingly difficult. It was meant to guard “equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults.”[19] Proponents of ratification even described the amendment process as “easy.”[20] And there is strong evidence that the Founders expected that the states would coordinate their origination of constitutional amendments by advance agreement. Most significantly, at the Virginia Ratification convention, George Nicholas stated, “It is natural to conclude that those States who will apply for calling the Convention, will concur in the ratification of the proposed amendments” (emphasis added).[21] The Compact’s streamlined approach thus conforms to the spirit of Article V.

 

Consent of Congress Requirements

Another common objection is that the Compact approach is defective because Article I, Section 10, of the U.S. Constitution provides that states may not enter into compacts without the “consent” of Congress. But the Supreme Court has held for nearly 200 years that congressional consent to interstate compacts can be given expressly or implicitly, either before or after the underlying agreement is reached.[22] Moreover, under equally longstanding precedent, a binding interstate compact can be constitutionally formed without congressional consent so long as the compact does not trench on the federal government’s delegated powers.[23]

Nothing in the Compact for a Balanced Budget trenches on any federally delegated power, because conditional enactments and express provisions ensure that all requisite congressional action in the Article V amendment process would be secured before any compact provision predicated on such action became operative. Although it is true that the Compact Commission will operate immediately upon the membership of two states, that changes nothing in this regard. A compact does not trench on federal power merely because it provides “strength in numbers” among the states for a more effective federal educational or lobbying campaign.[24] To claim otherwise, one would have to demonstrate that the federal government, not the states, has the exclusive power to direct and control an Article V convention by way of setting the convention agenda and delegate instructions. But all of the available Founding-era and near-Founding-era evidence shows that it was the public understanding of the Framers and the Ratifiers that the states would target the Article V convention process to desired amendments, which implies state control over the convention agenda and delegates.

In fact, any convention called in response to applications of state legislatures seeking a convention with a specific agenda is naturally understood as adopting that specific agenda.[25] This is because the word “application” was a legal term of art at the time of the founding that described a written means of petitioning a legislative body for specific relief.[26] The usual and customary practice in response to specific applications was either to grant what was requested or to deny them.[27] The contemporaneous usage of “application” thus supports the conclusion that state legislatures had the power to apply for an Article V convention with a specific agenda.

Consistent with that understanding, Hamilton wrote in Federalist No. 85, “If, on the contrary, the Constitution proposed should once be ratified by all the States as it stands, alterations in it may at any time be effected by nine States.”[28] The reference to alterations being “effected by nine States” was in regard to what would be “effected” by the application of two-thirds of the states for an Article V convention; nine states being two-thirds of the original thirteen. The fact that Hamilton intended to convey the understanding that the application itself would specify the desired “alteration” is further evident in the immediately following sentence: “Here, then, the chances are as thirteen to nine in favor of subsequent amendment, rather than of the original adoption of an entire system.” Significantly, Hamilton footnoted the number “nine,” explaining: “It may rather be said TEN, for though two thirds may set on foot the measure, three fourths must ratify.” The colorful phrase that “two thirds may set on foot the measure” clearly indicates that the ultimately ratified amendment (“the measure”) would be initially specified by the application of “two thirds” of the state legislatures. Indeed, Alexander Hamilton concluded Federalist No. 85 by concluding, “We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority” by using their amendment power under Article V. Because Congress selects the mode of ratification and state legislative ratification may never happen, we know that Hamilton had to be speaking of the targeting of Article V applications originated by state legislatures as the source of such barriers to national encroachments.

Hamilton was not alone in his understanding of how applications would unite the states in advancing one or more particular amendments. For example, on January 23, 1788, Federalist No. 43 was published with James Madison’s attributed observation that Article V “equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”[29] Similarly, George Washington wrote on April 25, 1788, “it should be remembered that a constitutional door is open for such amendments as shall be thought necessary by nine States.”[30] On June 6, 1788, George Nicholas reiterated the same points at the Virginia ratification convention, observing that state legislatures may apply for an Article V convention confined to a “few points.”[31] Ten years later, on February 7, 1799, James Madison’s Report on the Virginia Resolutions further observed that the states could organize an Article V convention for the “object” of declaring the Alien and Sedition Acts unconstitutional.[32] Of course, achieving these targeted results would naturally require that the states control convention logistics, including delegate appointments and instructions, to target the process to desired amendments. The Compact for a Balanced Budget thus does not infringe on any power delegated to the federal government by doing so—hence there is no need for congressional consent for the compact to be validly formed, although such consent is unavoidably necessary before the compact’s contemplated convention call and ratification referral can be effective.

 

Presidential Presentment Not Necessary

Another concern occasionally expressed about the Compact is that the counterpart congressional resolution, which gives implied consent to the Compact by calling the convention and preselecting legislative ratification in accordance with its terms, would require presidential presentment, as do ordinary bills.[33] However, the Supreme Court has already ruled in Hollingsworth v. Virginia that Congress’ role in the Article V amendment process does not implicate presidential presentment.[34] Although this ruling was applied specifically to the congressional proposal of amendments, there is every reason to conclude that Congress’ convention call and ratification referral powers would be treated the same way. Simply put, Congress’ call and ratification referral powers under Article V, like the congressional proposal of amendments, merely channels a legislative proposal for further action by other bodies—it is not, itself, making federal law. Thus, like the direct congressional proposal of amendments, the contemplated counterpart congressional resolution does not require presidential presentment.

 

Restrictions on the Convention

Some contend that the Compact for a Balanced violates Article V by pre-committing member state delegates to voting up or down on the proposal of a specific balanced budget amendment. In response, it should first be observed that no Founder ever expressed the distinctly modern view that the states must first organize an Article V convention to find out what amendments it might propose. On the contrary, George Washington, James Madison, and Alexander Hamilton all said that the states’ power to obtain desired amendments by convention would be equal to that of Congress’ power. These representations, if taken as true, imply that the Article V convention was meant to be an instrumentality that could be directed by the states to proposing specific amendments, not an independent agency with a mysterious reform agenda of its own.[35]

Criticism of the Compact’s laser-focused approach to advancing a specific Balanced Budget Amendment also fails to account for the mechanism by which the Compact requires an up-or-down vote on the contemplated amendment. Although the application nested in the Compact sets the agenda, it is actually the delegate instructions set out in the Compact that enforce the adoption of convention rules that limit the agenda to an up-or-down vote on the contemplated Balanced Budget Amendment. As the first order of business, delegates are strictly instructed to adopt the Compact’s contemplated convention rules, which require an up-or-down vote on the contemplated amendment, or else they forfeit their authority in a variety of ways.[36] This means that the scope limitations of the Compact are enforced based on the agency principle that the delegates are the agents of the states that sent them. Thus, the extent of targeting in the Compact differs only in degree, not kind, from the custom and practice of more than a dozen interstate and inter-colonial conventions that were organized prior to the ratification of the U.S. Constitution.[37]

 

Countering Congressional Leverage

Finally, whether Fivers like it or not, Congress has significant leverage in the Article V amendment process. Despite the plain meaning of Article V, Congress has never regarded its convention call power as purely ministerial.[38] Congressional Research Service Analyst Thomas Neale has observed that Congress “has traditionally asserted broad and substantive authority over the full range of the Article V Convention’s procedural and institutional aspects from start to finish.”[39] And even if Congress called a convention with no federal strings attached, there is no guarantee that it would not set an impossibly short ratification sunset date for any proposal it disliked. It is irresponsible for Fivers to ignore these facts.

Only a compact ensures that the states lead and Congress follows. By fully occupying all logistical spaces and then deliberately seeking to co-opt Congress at the states’ time of choosing—using the platform of a Compact Commission to unite the states and enable them to parley institution-to-institution, the Compact approach minimizes the risk that Congress will abuse its Article V leverage. This, in turn, enables the Compact effort to neutralize the principal political and litigation risk to the Article V movement—Congressional sabotage.[40]

But even if Congress took an uncharacteristic hands-off approach to the Article V convention process, a compact-organized Article V convention remains the superior approach for a balanced budget amendment. This is because the organization of a convention of indefinite duration populated by as-yet unidentified delegates governed by as-yet unidentified rules is as likely to produce deadlock or to generate something worthless as to engender something worthwhile. And even if a worthwhile balanced budget amendment were proposed, the drafting-convention approach would still require the subsequent step of ratification. There is no guarantee that any amendment proposed by the convention would secure ratification from the requisite 38 states.

With the Compact, by contrast, you know what you are going to get. The text of the contemplated amendment is known in advance. The identities of the convention delegates are known in advance. The convention agenda and rules are known in advance. The convention itself would be limited to 24 hours, ensuring that its fiscal impact would be minimal. The amendment would be ratified if approved by the convention, because the Compact pre-commits each member state to ratifying it. Congress’ willingness to call the convention in accordance with the Compact would be known in advance, because the introduction of the requisite congressional resolution could be sought whenever the political stars align. The Compact thus maximizes the certainty that any investment of blood and treasure in the undertaking will yield results.

 

Conclusion

Of course, 36 more states must still join the Compact and simple majorities of Congress must approve it. But this can be done in as little as twelve months, because the Compact consolidates everything states do in the constitutional amendment process into a single agreement among the states that is enacted once by each state, and everything Congress does in a single resolution passed once. A non-compact approach to Article V simply cannot make that claim. With the clock ticking for federal fiscal reform, it is time for Fivers to upgrade.



[1] Enactment History of HB794, http://www.legis.ga.gov/legislation/en-US/Display/20132014/HB/794

[2] Enactment History of HB284, http://www.legis.state.ak.us/basis/get_bill.asp?bill=HB%20284&session=28

[4] See id., Article II, section 7.

[5] Id. (section 1).

[6] Id. (section 2).

[7] Id. (section 3).

[8] Id. (section 4).

[9] Id.

[14] Id., Title II, section 202.

[15] See, e.g., Omnibus Low–Level Radioactive Waste Interstate Compact Consent Act, Pub. L. 99-240, Title II, 99 Stat. 1842, 1859 (1986), available at http://www.gpo.gov/fdsys/pkg/STATUTE-99/pdf/STATUTE-99-Pg1842.pdf; Northeast Interstate Dairy Compact, 7 U.S.C. § 7256 (1996).

[16] See, e.g., Compact of Free Association Act of 1985, Pub. L. 99-239, Title II, 99 Stat. 1770, 1800, available at http://www.gpo.gov/fdsys/pkg/STATUTE-99/pdf/STATUTE-99-Pg1770.pdf; Jennings Randolph Lake Project Compact authorized, W. Va. Code, § 29-1J-1 (1994); Interstate Compact on Licensure of Participants in Live Racing with Parimutuel Wagering, Ky. Rev. Stat. § 230.3751 (2001); Interstate Compact on Juveniles, Wyo. Stat. § 14-6-102 (1977)

[17] See, e.g., Marshall Field & Co. v. Clark, 143 U.S. 649 (1892); Opinion of the Justices, 287 Ala. 326 (1971); Thalheimer v. Board of Supervisors of Maricopa County, 11 Ariz. 430, 94 P. 1129 (Ariz. Terr. 1908); Thomas v. Trice, 145 Ark. 143 (1920); Busch v. Turner, 26 Cal. 2d 817 (1945); People ex rel. Moore v. Perkins, 56 Colo. 17 (1913); Pratt v. Allen, 13 Conn. 119 (1839); Rice v. Foster, 4 Harr. 479 (De. 1847); Opinion to the Governor, 239 So. 2d 1 (Fla. 1970); Henson v. Georgia Industrial Realty Co., 220 Ga. 857 (1965); Gillesby v. Board of Commissioners of Canyon County, 17 Idaho 586 (1910); Wirtz v. Quinn, 953 N.E.2d 899 (Ill. 2011); Lafayette, M&BR Co. v. Geiger, 34 Ind. 185 (1870); Colton v. Branstad, 372 N.W. 2d 184 (Iowa 1985); Phoenix Ins. Co. of N.Y. v. Welch, 29 Kan. 672 (1883); Walton v. Carter, 337 S.W. 2d 674 (Ky. 1960); City of Alexandria v. Alexandria Fire Fighters Ass’n, Local No. 540, 220 La. 754 (1954); Smigiel v. Franchot, 410 Md. 302 (2009); Howes Bros. Co. v. Mass. Unemployment Compensation Commission, 296 Mass. 275 (1936); Council of Orgs. & Ors. For Educ. About Parochiaid, Inc. v. Governor, 455 Mich. 557 (1997); State v. Cooley, 65 Minn. 406 (1896); Schuller v. Bordeaux, 64 Miss. 59 (1886); In re O’Brien, 29 Mont. 530 (1904); Akin v. Director of Revenue, 934 S.W.2d 295 (Mo. 1996); State v. Second Judicial Dist. Ct. in & for Churchill County, 30 Nev. 225 (1908); State v. Liedtke, 9 Neb. 490 (1880); State ex rel. Pearson, 61 N.H. 264 (1881); In re Thaxton, 78 N.M. 668 (1968); People v. Fire Ass’n of Philadelphia, 92 N.Y. 311 (1883); Fullam v. Brock, 271 N.C. 145 (1967); Enderson v. Hildenbrand, 52 N.D. 533 (1925); Gordon v. State, 23 N.E. 63 (Ohio 1889); State ex rel. Murray v. Carter, 167 Okla. 473 (1934); Hazell v. Brown, 242 P.3d 743 (Or. App. 2010); Appeal of Locke, 72 Pa. 491 (1873); Joytime Distributors & Amusement Co. v. State, 338 S.C. 634 (1999); Clark v. State ex rel. Bobo, 113 S.W.2d 374 (Tenn. 1938); State Highway Dept. v. Gorham, 139 Tex. 361 (1942); Bull v. Reed, 54 Va. 78 (1855); State v. Baldwin, 140 Vt. 501 (1981); State ex rel. Zilisch v. Auer, 197 Wis. 284 (1928); Brower v. State, 137 Wash. 2d 44 (1998); Le Page v. Bailey, 114 W. Va. 25 (1933).

[18] See, e.g., State v. Dumler, 559 P.2d 798 (Kan. 1977); Bracey Advertising Co. v. North Carolina Dept. of Transportation, 241 S.E.2d 146 (N.C. Ct. App. 1978).

[19] Federalist No. 43 in The Federalist (The Gideon Edition), edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), available at http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=788&chapter=108643&layout=html&Itemid=27

[20] Reply to George Mason’s Objections to the Constitution,” New Jersey Journal, December 19, 26, 1788, in The Documentary History of the Ratification of the Constitution, Digital Edition, ed. John P. Kaminski, Gaspare J. Saladino, Richard Leffler, Charles H. Schoenleber, and Margaret A. Hogan (Charlottesville: University of Virginia Press, 2009), available at http://history.wisc.edu/csac/documentary_resources/ratification/attachments/nj%20a%20reply%20to%20george%20mason.pdf; “Letters of a Citizen of New Haven,” in Friends of the Constitution: Writings of the “Other” Federalists, 1787-1788, edited by Colleen A. Sheehan and Gary L. McDowell (Indianapolis: Liberty Fund, 1998) , p. 271, available at http://files.libertyfund.org/files/2069/Sheehan_0118_Bk.pdf

[21] Jonathan Elliot, The Debates in the Several State Conventions of the Adoption of the Federal Constitution, vol. 3, pp. 101-02 (Virginia) (1827), available at http://files.libertyfund.org/files/1907/1314.03_Bk.pdf

[22] Cuyler v. Adams, 449 U.S. 433, 441 (1981); Wharton v. Wise, 153 U.S. 155 (1894); Virginia v. Tennessee, 148 U.S. 503, 521 (1893); Green v. Biddle, 21 U.S. 1, 39-40 (1823).

[23] Cuyler, 449 U.S. at 440; U.S. Steel v. Multistate Tax Commission, 434 U.S. 452, 459 (1978); the decision stated that congressional consent is required only for an interstate compact that would enhance “states power quoad [relative to] the federal government”).

[24] U.S. Steel, 434 U.S. at 479 n. 33.

[25] Robert Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, Goldwater Institute Policy Report No. 241, Sept. 16, 2010, pp. 15-18.

[26] See, e.g., Journals of the Continental Congress, Proceedings, vol. VI, (June 1780) (application from New Hampshire), p. 189; id. at 331 (October 1780) (application from New York), available at https://play.google.com/store/books/details?id=QmgFAAAAQAAJ&rdid=book-QmgFAAAAQAAJ&rdot=1

[27] See, e.g., id.

[28] Federalist No. 85, in The Federalist (The Gideon Edition), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), available at http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=788&chapter=108727&layout=html&Itemid=27

[29] Federalist No. 43 in The Federalist (The Gideon Edition), Edited with an Introduction, Reader’s Guide, Constitutional Cross-reference, Index, and Glossary by George W. Carey and James McClellan (Indianapolis: Liberty Fund, 2001), available at http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=788&chapter=108643&layout=html&Itemid=27

[30] The Writings of George Washington, collected and edited by Worthington Chauncey Ford, Vol. XI (1785-1790) (New York and London: G. P. Putnam’s Sons, 1890) , p. 249, available at http://files.libertyfund.org/files/2415/Washington_1450-11_Bk.pdf

[31] Jonathan Elliot, The Debates in the Several State Conventions of the Adoption of the Federal Constitution, vol. 3 (Virginia) (1827) , p. 102, available at http://files.libertyfund.org/files/1907/1314.03_Bk.pdf

[32] The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, Vol. 6, Gaillard Hunt, ed. (New York: G.P. Putnam’s Sons, 1900) , pp. 403-04, available at http://files.libertyfund.org/files/1941/1356.06_Bk.pdf

[33] U.S. Const., art. I, sec. 7 (cl. 2).

[34] Hollingsworth v. Virginia, 3 U.S. 378 (1798); Consumer Energy Council of Am. v. FERC, 673 F.2d 425, 460 (D.C. Cir. 1982); Special Constitutional Convention Study Committee, American Bar Association, Amendment of the Constitution by the Convention Method under Article V 25 (1974).

[35] A similar conclusion has been reached by numerous experts. See, e.g., Michael B. Rappaport, “The Constitutionality of a Limited Convention: An Originalist Analysis,” Constitutional Commentary, Vol. 81 (2012), p. 53; Mike Stern, “Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention,” Tennessee Law Review 765 (Spring 2011), p. 78; “Note, The Other Way to Amend the Constitution: The Article V Constitutional Convention Amendment Process,” Harvard Journal of Law and Public Policy 30 (2007), pp. 1005, 1022.

[36] The Compact’s limitations on delegate authority and instructions are enforced by automatic forfeiture of the appointment of all delegates for that Member State if any delegate violates such limitations and instructions (see HB284/HB794, Article VI, section 10, http://www.legis.state.ak.us/PDF/28/Bills/HB0284Z.PDF, http://www.legis.ga.gov/Legislation/20132014/144709.pdf). Second, the legislature of the respective member state could also immediately recall and replace the runaway delegate (see id., sections 3 and 4). Third, if such behavior were disorderly, in addition to all other standard means of maintaining order and enforcing the rules furnished under Robert’s Rules of Order and the American Institute of Parliamentarians Standard Code of Parliamentary Procedure, the Chair of the Convention could suspend proceedings and the Commission could relocate the Convention as needed to resume proceedings with a quorum of states participating (see id., Article VII, Sections 2, 7 and 8). Fourth, a declaratory judgment ruling all actions of the runaway delegate “void ab initio” and an injunction or temporary restraining order forcing the delegate to cease participation and to return to his or her state capitol would be another option because attorneys general of each member state are required to seek injunctions to enforce the provisions of the Compact (compare id., Article X, section 3, with id., Articles VI, sections 6, 7, 10). These delegate-specific direct enforcement mechanisms are in addition to the following backstop “kill-switches” (which every member state attorney general must also enforce): (1) the prohibition on member states participating in the convention unless the Compact rules are adopted as the first order of business (id., Article VIII, section 1(b)); (2) the prohibition on transmission of any amendment proposal from the convention other than the contemplated amendment (id., Article VII, section 9); (3) the nullification of any convention proposal other than the contemplated amendment (compare id., Article VIII, section 2(a), with id., Articles VI, sections 6, 7, 10, and id., Article VII, section 2); and (4) the disapproval of ratification of any amendment by all member states other than the contemplated amendment (id., Article VIII, section 3).

[37] See, inter alia, Robert Natelson, Amending the Constitution by Convention: A Complete View of the Founders’ Plan, Goldwater Institute Policy Report No. 241 (Sept. 16, 2010).

[38] Thomas H. Neale, The Article V Convention to Propose Constitutional Amendments: Contemporary Issues for Congress, R42589, 18 (C.R.S., April 11, 2014), www.fas.org/sgp/crs/misc/R42589.pdf

[39] Id.

[40] Congressional implied consent could be construed as transforming the Compact’s terms and conditions relating to the Article V convention it organizes into the functional equivalent of federal law for procedural purposes under current precedent, if Congress’ call power were wrongly regarded as entailing such power. See, e.g., New Jersey, 523 U.S. at 811; Bryant, 447 U.S. at 369; McKenna, 829 F.2d 186.

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  • billwalker

    People who are considering supporting “Compact for America” should first read http://www.foavc.org/reference/file48.pdf . The article discusses the fact that the courts have ruled that a compact must be approved by Congress which this one has not. Moreover the courts have explicitly ruled that no addition can be made to the amendment process such as using the compact clause to try to amend the Constitution.

    • Nick Dranias

      Bill, for full disclosure, you should note that you are not an attorney. Not surprisingly, your interpretation of the governing case law is wrong as discussed above.

      • billwalker

        Fair enough Nick. FOR THE PURPOSES OF FULL DISCLOSURE: It is true I am not an attorney. However unlike Mr. Dranias who has advanced a legal theory but never tested in an actual courtroom before a federal judge let alone presented it to the Supreme Court of the United States, my position has been before the federal court system, been before the Supreme Court of the United States and agreed to formally as being correct as to fact and law by the Solicitor General of the United States acting in his official capacity both as SG and attorney of record for all members of Congress. You can read about the cases in the FAQ section of http://www.foavc.org

        Now as Nick has asked for full disclosure let me add my cases, Walker v United States (2000) and Walker v Member of Congress (2004) are to date the ONLY federal lawsuits ever filed regarding the convention process in United States history. To sum the position made and agreed to by the SG before the Supreme Court relevant to this issue: A convention call is based on a simple numeric count of applying states WITH NO OTHER TERMS OR CONDITIONS. A compact would be a term or condition therefore as a agreed to by the government is incorrect as to fact and law.

        Now when Nick actually takes his theory to a federal judge who states, “Brilliant!” and has it approved as constitutional THEN he can demand “full disclosure” of those who have already PROVED their assertions in public court which is the standard and test for any legal assertion. Until then Nick I suggest you refrain from asking those who have proved their case from making “full disclosure” least it show how little you have proved yours.

        The fact two states have “signed on” to your idea doesn’t mean a thing. Until Congress approves your compact it has no legal standing whatsoever and I don’t hear you saying in your article that your compact, now agreed to by two states has now been submitted to Congress for its approval. In short Nick until you put it on the line and actually have your theory tested in this case by Congress, you’re still blowing in the wind. There is no compact until Congress approves it and it’s true whether 50 states agree to it or 2. So when was it submitted to Congress Nick?

        • Nick Dranias

          Bill, why not tell the audience whether sanctions were imposed on you in either of your two cases. Also, maybe tell the folks what the outcome of your litigation was.

          • billwalker

            There were no sanctions Nick. Further as to the outcome. As the original Walker decision was advisory as well as the district court decision in Walker v Members of Congress the fact the Supreme Court did not grant Cert had no bearing on the issue as the court removed itself from having authority to rule on amendments questions in 1939 by declaring any decision made by a court in the amendment process was purely advisory given without any constitutional authority whatsoever.

            The question was what the government would do given these were the first post-Coleman lawsuits filed following the Coleman v Miller decision of 1939. Would the government follow Coleman and assert “exclusive” control of the amendment process by Congress or would it obey the Constitution as written meaning the states and the people participate? The decision of the government was to obey the Constitution and reject Coleman.

            The decision of the SG and his clients was a complete victory for me and was determined not by the court as their decision was advisory but by the actions of the SG at the Rule 15.2 portion of the case. Given this was exactly what I planned when I began the lawsuits and it came out completely in my favor, I count it a total victory.

            If I had lost Nick, just for your reference, your “compact” proposal would be DOA. Because as we know Coleman gave “exclusive” control of the amendment process to Congress and not the states. So any compact such as you propose would be utterly controlled by Congress not the states. However Coleman is irrelevant. Given the fact that Congress must approve a compact before it can have legal effect and in order for it to be constitutional (and I notice you avoided my question about when the compact is submitted to Congress so it has any effect whatsoever) this means your compact will be controlled by Congress not the states as Congress sets the terms ultimately not the states.

            You can read a full article on the details of this case at http://www.foavc.org/reference/file57.pdf

            BTW since we’re on the disclosure bit here Nick. Why don’t you tell the people about the little trick I expose in my article about making the entire convention controlled by a single state under your Compact proposal. It’s in my article about the compact the link of which I already posted. Remember Nick before you start trying to go around it, I quoted from your own work to prove my point.

            I must have you nervous Nick. Usually you ignore me. The only time you don’t is when I hit home.

          • Nick Dranias

            Bill, you make me nervous because you do not understand the law and yet claim expertise. You lost your cases, correct. You had a brief stricken for being excessive in size, correct? Was it 150 pages or so? Did you have to pay any sanction in connection with that? In relation to your ranting, read the article. Congressional consent is furnished by calling the convention in accordance with the compact. That, in turn, will only happen under the terms of the compact when 38 states join it. The political process for securing congressional consent is no different than the political process for securing a congressional call without a compact. A concurrent resolution supported by simple majorities. In the meantime, the compact proceeds forward, organizes its commission and organizes the states. Coleman is irrelevant because the compact approach cuts the Gordian Knot of who controls what by ensuring both the states and Congress agree–but the states lead first. There is nothing mysterious about the default selection of Texas as the convention location and litigation venue. It is a central location convenient to all states. It has a solid state and federal judicial court system. It has a culture that respects American traditions and values better than any other state. A convention has to be held somewhere, Texas is the best place. And so far two other states have agreed.

          • billwalker

            Nick, when you file your cases, come back and tell me how you “won” yours. As I said I did not lose the case. The government agreed with me. Just that simple. No there were no sanctions by the court. And for the record the brief is 860 pages using 208 Supreme Court rulings.

            You try to bluff your way through court rulings by saying they don’t matter when they do. The court has ruled what Article V states is what it means. You can’t therefore “amend” the Constitution using the compact clause because the courts have precluded it. A compact mandates the president sign it as it is legislation. The courts have ruled the president shall have no part of the amendatory process. So the president can’t sign the compact and without his signature no compact. You’ll say that doesn’t matter. Indeed you have said this to all such objections. But Nick just because you say it doesn’t make it so.

            If your idea was so great lots of others would be joining it with legal support. Instead you stand alone just like Natelson. Your compact idea has been around long enough that others in the legal and academic world if they believed it valid would write supporting articles you’d quote. There are none and there won’t because your theory and that is all it is, is simply wrong.

            Let me educate you just how wrong it is. Under the Constitution you have to get approval now for your compact not when 38 states join it. The Constitution is explicit. “No state shall, with the Consent of Congress…enter into any Agreement or Compact with another State…”

            You have two states that have entered into agreement. They have no choice but to submit their agreement regardless of its terms to Congress. Otherwise the agreement is unconstitutional and forms the basis of a lawsuit. I know you’ll say I’m wrong but when a federal judge says it I hope you’ll at least listen to him.

          • Nick Dranias

            Bill, we will be waiting for your 1000 page brief in a Texas courtroom.

          • billwalker

            Nick you just proved how uneducated you are. Citizens of one state have been prohibited from bringing suit against citizens of another state since 1798. Or haven’t you even read the Constitution? Oh I forgot. Any objection raised about the law you simply state doesn’t matter.

            You may not think so today Nick but someday you’ll regret that taunt you made not because it was a taunt but because it was prophetic.

          • billwalker

            Oh yeah Nick just for the record. I formally challenge you to a debate just like I did Trent England a few weeks ago. Same rules. Now you have all kinds of references so it should be an interesting discussion. If you are game reply and I’ll contact Dave Campbell. The subject: your compact idea of course.

          • Nick Dranias

            Bill, I appreciate the invite, but I doubt I’ll have time.

          • billwalker

            Why am I not surprised. You realize of course this will be on Facebook in a heartbeat. People will ask: if you are so correct in your position, why not debate him and show him for the incorrect person he is. Oh by the way since I have your attention I thought I might mention. You have to take your compact to Congress now, not when you say it. The Constitution mandates before a compact can take effect it must be approved by Congress. I’ll ignore the fact this can’t happen because since it deals with the amendment process the president can’t sign it. Instead my main point.

            Your compact clearly states that when two states join then officers are appointed. That constitutes an act of a compact and before that can happen Congress must approve it. Technically, and I did check this, what you propose is a two state compact with others then joining in, not a 38 state compact which then takes effect.


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