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What happens when Congress passes an unconstitutional law?

January 28, 2013 by Scott Bomboy


The debate over the “No Budget, No Pay” debt-ceiling deal has some people saying the proposed act is unconstitutional because of the 27th Amendment. But what happens if Congress passes a law that can be successfully challenged?

Any such challenge could take years in the appeals process as it heads to the Supreme Court and would possibly happen after the current 113th Congress has concluded its business.

The No Budget, No Pay Act of 2013 was passed last week in the House and extends the debt ceiling into May. Senate leaders and President Obama had said previously they would support the measure.

As part of the deal, pay for Congress members will be placed in an escrow account if an official budget isn’t approved by April 15, 2013.

After that date, if the House or Senate doesn’t approve a budget, the pay for the chamber in violation gets put aside until a budget is approved, or the current Congress ends in January 2015, and the money is released.

Link: Read the No Budget, No Pay Act

The 27th Amendment says that “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.” It was approved in 1992.

Some critics argue that by putting its pay on hold, Congress is “varying” its pay and directly violating the 27th Amendment, since a sitting Congress can’t change its own compensation. At the very least, they say, the law can’t take effect until the next Congress is seated in 2015.

More vocal critics are crying foul and call the bill a direct constitutional violation.

In a Constitution Daily article last week, we pointed to a comment that UCLA law professor Adam Winkler made to the website Talking Points Memo, which states the crux of a bigger argument.

“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 escrow option is being used to avoid a “violation of the 27th article of Amendment to the Constitution.”

But a district court ruling from last December might show how a lawsuit about the act could make its way to the Supreme Court.

In the case of Common Cause v. Biden, a U.S. district court in December 2012 found that four members of the House didn’t have a legal right to sue the Senate over its filibuster policy.

U.S. District Court Judge Emmet Sullivan tossed out the lawsuit, in part, because the four House members couldn’t prove they were harmed by the Senate’s filibuster policy. (In this case, the complaint was related to the stalling of the DREAM Act and DISCLOSE Act in the Senate in 2010.)

The No Budget, No Pay Act of 2013, at least on the surface, would present a different challenge, since a Congress member going without a paycheck for months might be directly harmed financially.

Senators from both parties are in the middle class, and the House had 144 nay votes on the bill.

So it would take just a handful of unhappy Congress members to file a lawsuit to get the appeals process in motion.

If 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.

According to the 2010 supplement to the official Constitution with Annotations, there were 165 congressional acts that the Supreme Court have found unconstitutional since 1803.

In recent years, two rejections of a congressional act took less than one year, and a few took just over a year. But in most cases, it takes some time for a case to make its way to the highest court in the land.

In June 1986, the Supreme Court rejected parts of the Balanced Budget Act passed in December 1985.

And in October 1989, Congress passed the Flag Protection Act, which banned burning the American flag. The Supreme Court overturned it in June 1990 in the case of United States v. Eichman.

Another act was rejected in 17 months’ time. It was in June 1997 that the Supreme Court ruled against sections of the Communications Decency Act, which was passed in February 1996.

Also, in December 2003, the Supreme Court overturned several sections of the McCain-Feingold Act from March 2002.

President Barack Obama’s Patient Protection and Affordable Care Act almost joined that list, just missing by one vote on the Supreme Court. It was passed in March 2010 and the Roberts Court ruled in June 2012, about two years and three months after the act passed Congress.

The first congressional act ever rejected by the Supreme Court was probably its most important early decision.

The case of Marbury v. Madison in 1803 established the concept of judicial review and the Supreme Court’s power to say when an act of Congress was unconstitutional.

The Marbury decision overturned an act from 1789.

The famous (or infamous) Dred Scott decision from the court also overturned a congressional act, the 1820 Missouri Compromise.

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

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