Tuesday, January 18, 2011

WaPo thinks Rep. Bill Young is Illegally Seated in Congress!

The Washington Post ran a story on Monday suggesting that Rep. Gabrielle Giffords might be stripped of her seat in Congress, due to a provision of Arizona law that deems a seat vacant in the event that the occupant fails to discharge the duties of office for three consecutive months.

So how come Bill Young can still be a Congressman, even three decades past his state constitutionally mandated retirement date?

See, Bill Young is a Congressman from Florida, and has been since the 1970s. His district's voters continue to re-elect him every two years, and he continues to serve them in Washington. In fact, he's currently the longest-serving Republican in Congress. But ever since 1992, there's been a provision in the Florida constitution setting term limits for U.S. Representatives and Senators (as well as members of the state legislature, the Lieutenant Governor, and all cabinet posts). The maximum any elected official can serve in a single office under that law is eight years.

So why is Rep. Young still allowed to serve?

The answer is actually pretty simple. The state term limit law is invalid as applied to federal officers.

States can enact all sorts of laws on all manner of issues, from voting rights to abortion. Sometimes, however, those laws run afoul of the Constitution. If a state passes a ban on all abortions, the courts will rule it unenforceable. If a state says you have to be 30 to vote, they can write such a law in stone and it won't matter: it will not be enforced as written. If a state authorized slavery, or outlawed all firearms, or wrote that all crimes would be punishable by life in prison, those laws would be invalidated as well. But that doesn't mean the laws would disappear from the books!

No, dead-letter law exists in any number of places. And for good reason: a future Supreme Court majority might overturn an old precedent, making the previously unenforceable law kosher once more. But these are very, very rare moments, because while the Court may from time to time reinterpret the Constitution's text, I doubt they would be willing to reinterpret the basic principles of federalism. The Constitution is the supreme law of the land: it tells us so itself!

The easiest way to dispose of this article's ridiculous premise is to note that there isn't really a way for Representatives to not "discharge the duties of office," since there are really only two affirmative duties the Constitution places on Members of Congress. "The House of Representatives shall chuse their Speaker and other Officers," and "The Senators and Representatives before mentioned...shall be bound by Oath or Affirmation, to support this Constitution." Beyond that, it really is just a matter of (putting it bluntly) being able to fog a mirror.  Sure, Congress has power to do certain things, and is enjoined from doing others, but as for affirmative obligations of office, those two are it, and Giffords already did both during the 112th Congress (famously casting a vote for Rep. John Lewis to be Speaker).

But that easy workaround aside, the whole issue is one of a state trying to impose additional conditions for congressional service beyond those set by the Constitution. If the Courts won't let Congress impose such conditions, there's no way on earth they'll let the states do it. Imagine if a state allowed its governor to unilaterally recognize a vacancy in Congress whenever he felt like it. A hapless Member could take off from Dulles a Congressman and land back home a pensioner. It's simply unworkable, and it's constitutionally unsound.

In fact, this is so obvious a point that I have to wonder why the Washington Post would indulge in such speculation. As the article's authors themselves noted, this is a very obscure provision in Arizona law, and it doesn't take a Supreme Court clerk to tell that there's no cause for concern, legally or politically, about Rep. Giffords being removed from office (seriously, can you imagine the outrage if Gov. Brewer attempted to call a special election to replace Gabby while the Congresswoman is recovering?). I have to wonder who pointed these reporters to this provision of the law, and what their agenda was in so doing.
Regardless, the fact remains: Giffords's seat is hers until she resigns, is expelled from Congress, or loses an election. No need to pretend otherwise, WaPo.

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