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'Convention of States' is the last thing America needs right now, by David A.
Super, Opinion Contributor, 3/27/18, The Hill.
As
we careen from one partisan confrontation to another, it might surprise many
people to learn that some people actually think that this is a good time to
open up our fundamental law. But yes, several groups on both the Left and
the Right are busily working to persuade states to pass resolutions asking
Congress to call a convention under Article V of the Constitution.
One group seeking a convention in the hope that it would
produce a balanced budget amendment to the Constitution claims —
using highly dubious math — to have resolutions
from 28 of the 34 states required to compel Congress to call such a convention.
Another group, the Convention of States Project (COSP),
seeks more broadly to strip the federal government of power. The American
Legislative Exchange Council
(ALEC) is supporting this effort.
A
liberal group, Wolf PAC, has persuaded a handful of blue states to
request an Article V convention with the hope that it will reform campaign
finance law.
Much
of the opposition to calling an Article V convention results from the danger
that such a convention could veer in dangerous and unpredictable directions,
especially in this toxic political atmosphere.
Recognizing these concerns about a runaway Article V
convention, COSP and ALEChave urged states to pass
laws purporting to direct delegates how
to vote and providing for those delegates’ recall should the delegates disobey
the legislature’s instructions constraining how their delegates could vote.
These bills are a sham that do nothing to reduce the dangers of calling an
Article V convention.
Article V of the U.S. Constitution
provides two methods of adopting amendments. First, Congress may, by a
two-thirds majority in both houses, propose amendments to the states. Second,
if two-thirds of the states ask Congress to call a constitutional convention,
Congress must do so.
Every
amendment to date has been proposed and ratified through the first method.
These groups are seeking to persuade state legislatures to take the country
into the uncharted territory of an Article V convention.
Nothing
in Article V, or anywhere else in the Constitution, authorizes Congress, state
legislatures, or anyone else to limit the agenda of an Article V convention.
And even if they did, the Supreme Court has made clear that the process of amending the
Constitution is a “political question” into which the courts would not
intervene.
Once
the delegates convene, they are answerable only to themselves. The product that
emerges from an Article V convention could be radically different from what
those asking it to be called may have envisioned, just as the Philadelphia
convention of 1787 departed sharply from its mandate to propose amendments to
the Articles of
Confederation.
COSP’s
proposed delegate-constraining laws will not work for several reasons.
First, nothing in the Constitution gives state legislatures the power to
control their states’ delegates any more than state legislatures can control
their states’ Members of Congress.
Once
selected, delegates to an Article V convention become federal officials with
authority derived from Article V, not from the states. In Bush v. Palm Beach County Canvassing Bd., the U.S. Supreme Court held that, when state officials derive their powers from
the U.S. Constitution, federal law can constrain state officials’ actions.
Second,
even if such state laws were valid and binding, no one is or can be empowered
to enforce them. Article V limits
Congress’s
role to calling a convention once a sufficient number of states have made valid
requests; it would have no authority to oust delegates even if it wanted to do
so. As noted, the Supreme Court has made clear that such matters as political
questions that federal courts may not decide. State courts have no authority to
intervene in a federal constitutional convention.
Finally,
even if such laws were valid and enforceable, the convention would almost
certainly finish its work before the laws could be invoked. Particularly if
delegates are aware of such state laws, they could readily arrange for all
matters before the convention to be decided by a single up-or-down vote at the
end of its proceedings.
Negotiators
on complex matters routinely operate on the basis that nothing is agreed until
everything is agreed. This leads to a single large package that is approved as
a block at the very end. At that point, the convention would disband, and any
recall of delegates would be meaningless.
Calling
an Article V convention is reckless, especially at this divisive moment in our
nation’s political history. Nothing these groups propose does anything even to
mitigate the risks that a convention would bring. State legislatures should not
delude themselves that the dangers of an Article V convention can somehow be
contained.
David A. Super is a professor of
law at Georgetown Law. He also served for several years as the general counsel
for the Center on Budget and Policy Priorities.
Comments
12 States have passed the Convention of States
application.
Florida April 21, 2014Alabama May 22, 2015Tennessee February 4, 2016Indiana February 29, 2016Oklahoma April 25, 2016Louisiana May 25, 2016Arizona March 13, 2017North Dakota March 24, 2017 Texas May 4, 2017Missouri May 12, 2017
Norb Leahy, Dunwoody
GA Tea Party Leader
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