Constitution Daily

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Debt-ceiling deal passes despite constitutional concerns

February 1, 2013 by Scott Bomboy


The Senate has approved legislation that extends the nation’s debt ceiling until May, despite some concerns the bill conflicts with the 27th Amendment.

Debt clock. Source: Everyme at Wlikicommons
Debt clock. Source: Everyme at Wlikicommons

The House had passed the “No Budget, No Pay” bill last week and sent it to the Senate for consideration. Senators tried to tack four amendments onto the bill, but the measures were defeated on Thursday.

The legislation now heads to President Obama’s desk.

A key part of the legislation delays pay to members of the House or Senate if they don’t approve a budget by mid-April.

According to section 2 of the bill, a payroll administrator would withhold Congress members’ pay after April 15, 2013, if one or both houses of Congress couldn’t agree on a fiscal year 2014 budget. The money would be held in an escrow account and given back to Congress members when a budget was passed or at the end of the current 113th Congress in January 1, 2015.

The 27th Amendment is the most recent amendment added to the Constitution.

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened,” the amendment reads, as approved in 1992.

In short, the amendment states that a sitting Congress can’t change its pay while it is in session.

And that has some critics saying the “No Budget, No Pay” act doesn’t square with the Constitution.

Among the critics is UCLA law professor Adam Winkler, who gave a detailed explanation on the website Talking Points Memo last week.

“The answer is unclear because the 27th Amendment has never been authoritatively interpreted by the Supreme Court,” Winkler said in an email to the website. “Yet it seems almost certainly unconstitutional. Withholding pay effectively ‘var[ies] the compensation’ of lawmakers.”

The congressional leaders who championed the act don’t agree with Winkler. Section 2, paragraph 4, of the act specifically says that the pay-escrow option is being used to avoid a “violation of the 27th article of Amendment to the Constitution.”

If a constitutional challenge were to happen to the law, it would most likely come after Congress fails to reach a budget deal, and members of Congress sue to get their pay released from escrow.

The Senate hasn’t approved a budget since 2009 and the current debt-ceiling battle has been ongoing since the summer of 2011.

If the “No Budget, No Pay” case makes it to the Supreme Court, that may not even happen until the current Congress has left the building in Washington. In most cases, it takes more than two years to get a congressional act overturned by the high court.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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