Full Version: Is this a precedent
It is being reported everywhere that the bill for the relief of the parents of Theresa Marie Schiavo (S. 686) was passed unanimously by the Senate. In fact, according to the Washington Post, "the Senate, operating under unanimous-consent rules, passed the legislation yesterday afternoon with no debate and with only three members present." Under unanimous consent rules, a proposal is adopted by the Senate if there is no objection from any senator. But what happened to the Constitution? Specifically, Article I, Section5, Clause 1:
Now, according to the C-SPAN Congressional Glossary, "unless challenged by a point of order, the Senate conducts daily business without a quorum present." This, of itself, seems to be bending the Constitution: "adjourning from day to day" doesn't quite imply "passing unprecedented legislation" to me.
My question, though, is this: Can an extraordinary session, conducted at short notice on a Sunday afternoon, with only three senators in attendance be considered "daily business" as usual? My concern here is not with the specifics of this case - and the federal courts so far having refused to reverse the standing decision is irrelevant to what I see as a more significant issue. What is to prevent any handfull of senators and members of the House from calling such short-notice "sessions" and midnight votes to declare a war? or decriminalize heroin? or ban divorce? or legalize prostitution? or set up internment camps for Jews? This is, after all, a bill written to overrule court rulings, states' rights, and the Constitution itself.
Should this extraordinary bill, under such extraordinary circumstance be considered "passed"?
Should George Bush - or any president - sign such a "bill" into law?
Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.
QUOTE
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Now, according to the C-SPAN Congressional Glossary, "unless challenged by a point of order, the Senate conducts daily business without a quorum present." This, of itself, seems to be bending the Constitution: "adjourning from day to day" doesn't quite imply "passing unprecedented legislation" to me.
My question, though, is this: Can an extraordinary session, conducted at short notice on a Sunday afternoon, with only three senators in attendance be considered "daily business" as usual? My concern here is not with the specifics of this case - and the federal courts so far having refused to reverse the standing decision is irrelevant to what I see as a more significant issue. What is to prevent any handfull of senators and members of the House from calling such short-notice "sessions" and midnight votes to declare a war? or decriminalize heroin? or ban divorce? or legalize prostitution? or set up internment camps for Jews? This is, after all, a bill written to overrule court rulings, states' rights, and the Constitution itself.
Should this extraordinary bill, under such extraordinary circumstance be considered "passed"?
Should George Bush - or any president - sign such a "bill" into law?
Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.
-- James Madison, Federalist Number 44, 1788
What happened in this case was a voice vote. In a voice vote situation, any Senator present may request a quorum call. A quorum call may be stopped if all Senators present unanimously voice vote on it.
ABSENCE OF A QUORUM
It would have taken only one Senator to be present to object to the absence of quorum to force at least 51 Senators to be present for the vote. No Democrat, Republican, or Independent objected, thus there was no "absence of quorum".
Should this extraordinary bill, under such extraordinary circumstance be considered "passed"?
Every bill is "extraordinary". All it would have taken was one Senator to object to what was done. No one objected.
Should George Bush - or any president - sign such a "bill" into law?
This bill was extraordinary because the identical bill passed in the House, thus negating the need for a conference. This sped up the process.
I do think that the Senate should debate matters properly, however the Senate rules do not require this. SENATE ROLL CALL VOTES The Senators present did not demand a quorum call (or unanimously over-rode it) and did not call for a roll call vote.
The Congress decided that this was an emergency situation. The Senators not present did not deem it important enough to block it (which they could have easily done, in my opinion).
That's politics these days.
Should Bush have signed it? I think the way in which the legislation passed should be irrelevant to what the Executive does. Separation of powers, you know.
ABSENCE OF A QUORUM
It would have taken only one Senator to be present to object to the absence of quorum to force at least 51 Senators to be present for the vote. No Democrat, Republican, or Independent objected, thus there was no "absence of quorum".
Should this extraordinary bill, under such extraordinary circumstance be considered "passed"?
Every bill is "extraordinary". All it would have taken was one Senator to object to what was done. No one objected.
Should George Bush - or any president - sign such a "bill" into law?
This bill was extraordinary because the identical bill passed in the House, thus negating the need for a conference. This sped up the process.
I do think that the Senate should debate matters properly, however the Senate rules do not require this. SENATE ROLL CALL VOTES The Senators present did not demand a quorum call (or unanimously over-rode it) and did not call for a roll call vote.
The Congress decided that this was an emergency situation. The Senators not present did not deem it important enough to block it (which they could have easily done, in my opinion).
That's politics these days.
Should Bush have signed it? I think the way in which the legislation passed should be irrelevant to what the Executive does. Separation of powers, you know.
QUOTE(Amlord @ Mar 22 2005, 09:35 AM)
Every bill is "extraordinary". All it would have taken was one Senator to object to what was done. No one objected.
I would submit that, insofar as this bill re-wrote judicial procedure as defined by the Constitution (not to mention overruling Florida state law), that it was more than usually extraordinary.
QUOTE
This bill was extraordinary because the identical bill passed in the House, thus negating the need for a conference. This sped up the process.
Um, no. The bill was "passed" in the Senate - by three senators - in the afternoon, several hours before the House began debating it. The conference, evidently, was negated before the fact. Extraordinary, indeed.
QUOTE
Should Bush have signed it? I think the way in which the legislation passed should be irrelevant to what the Executive does. Separation of powers, you know.
I agree that this should have been debated - as should any bill, extraordinary or less extraordinary. The question of whether or not the president should have signed the bill isn't a question of separation. Any president could easily return a bill on the grounds that it wasn't properly debated, that there was no quorum, or on mere whim. Because of the import and unprecedented nature of this bill, I would think the Congressional procedure would have given any Executive pause.
Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation... The sober people of America are weary of the fluctuating policy which has directed the public councils. They have seen with regret and indignation that sudden changes and legislative interferences, in cases affecting personal rights, become jobs in the hands of enterprising and influential speculators, and snares to the more-industrious and less-informed part of the community.
-- James Madison, Federalist Number 44, 1788
QUOTE(Amlord @ Mar 22 2005, 06:35 AM)
This bill was extraordinary because the identical bill passed in the House, thus negating the need for a conference. This sped up the process.
I do think that the Senate should debate matters properly, however the Senate rules do not require this. SENATE ROLL CALL VOTES The Senators present did not demand a quorum call (or unanimously over-rode it) and did not call for a roll call vote.
The Congress decided that this was an emergency situation. The Senators not present did not deem it important enough to block it (which they could have easily done, in my opinion).
I do think that the Senate should debate matters properly, however the Senate rules do not require this. SENATE ROLL CALL VOTES The Senators present did not demand a quorum call (or unanimously over-rode it) and did not call for a roll call vote.
The Congress decided that this was an emergency situation. The Senators not present did not deem it important enough to block it (which they could have easily done, in my opinion).
Oh come on, you can't be serious Amlord. (at least I hope you aren't) Of course the senators present didn't demand a quorum, because they are the architects partially responsible for this whole thing.
And as to your "The senators not present did not deem it important enough to block it comment", that is completely ridiculous because the fact of the matter is that this was passed late on a Sunday and I'm almost 100% sure the Senators present didn't bother to notify the ones not present.
So what we have is three Senators just deciding on their own they are going to call the Senate to order to pass a bill they deem an "emergency" in complete contradiction of the Constitution.
Is that what kind of country you want to live in Amlord, where Senators (and presumably the House) can just decide they are going to have late night sessions and pass whatever legislation they want? Are we going to start waking up in the morning only to read that Senate majority leader Frist called the senate into session at 2 am with a few of his buddies and decided to start passing legislation?
The fact that they were working in concert with the House makes this even worse.
Should we go ahead and just rip up the Constitution and throw it in the fire here? This is a disgusting abuse of power by the Republicans once again and I can't see how anyone that has an ounce of respect for our Constitution and our political process isn't in an outrage over it. Politics these days indeed.
Should this extraordinary bill, under such extraordinary circumstance be considered "passed"?
Should George Bush - or any president - sign such a "bill" into law?
I agree with Amlord on this one. Passage did not violate the rules and I see no reason for the president not to sign it into legislation on any such grounds (separation of powers).
Whether this was a good thing to do at all-- is a different issue. I don't think Congress should be in the business of passing laws targeted at individuals. The law speaks specifically to any "parent" of Terri Schiavo. How many people will now be screaming that they want Congress to intervene in other matters?
QUOTE
I would submit that, insofar as this bill re-wrote judicial procedure as defined by the Constitution (not to mention overruling Florida state law), that it was more than usually extraordinary.
How so? Doesn't Congress have the authority to prescribe jurisdictional rules?
QUOTE(Wertz @ Mar 22 2005, 06:22 AM)
But what happened to the Constitution? Specifically, Article I, Section5, Clause 1:
QUOTE
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
QUOTE(Amlord @ Mar 22 2005, 08:35 AM)
It would have taken only one Senator to be present to object to the absence of quorum to force at least 51 Senators to be present for the vote. No Democrat, Republican, or Independent objected, thus there was no "absence of quorum".
The Senators present did not demand a quorum call (or unanimously over-rode it) and did not call for a roll call vote.
The Senators present did not demand a quorum call (or unanimously over-rode it) and did not call for a roll call vote.
QUOTE(hayleyanne @ Mar 22 2005, 07:30 PM)
I agree with Amlord on this one. Passage did not violate the rules and I see no reason for the president not to sign it into legislation on any such grounds (separation of powers).
Whether this was a good thing to do at all-- is a different issue. I don't think Congress should be in the business of passing laws targeted at individuals. The law speaks specifically to any "parent" of Terri Schiavo. How many people will now be screaming that they want Congress to intervene in other matters?
Whether this was a good thing to do at all-- is a different issue. I don't think Congress should be in the business of passing laws targeted at individuals. The law speaks specifically to any "parent" of Terri Schiavo. How many people will now be screaming that they want Congress to intervene in other matters?
This deserves repeating:
a Majority of each shall constitute a Quorum to do Business
QUOTE
quorum
1. The minimal number of officers and members of a committee or organization, usually a majority, who must be present for valid transaction of business.
2. A select group.
source1. The minimal number of officers and members of a committee or organization, usually a majority, who must be present for valid transaction of business.
2. A select group.
This also bares repeating:
who must be present for valid transaction of business
I fail to see where in the text of the constitution the Congress, is empowered to pass law without a majority in attendance. The costitution would seem to specifically forbid this.
Amlord and Hayleyanne, are you seriously suggesting that the founding fathers, in writing the above quoted section of the constitution did not intend, if not specifically spell out, a requirement of having a majority in attendance to conduct business in congress?
OK, let me see if I understand this. If I were a Senator, and I showed up at the Senate at 3 am some Sunday morning, I could pass any law I wanted, as long as I didn't ask myself for a quorum, and if the other Senators (who are not there) didn't object? Am I missing something here? Isn't this a little surrealistic?
I'm amazed that this is possible under the current rules.
I'm amazed that this is possible under the current rules.
QUOTE(Wertz @ Mar 22 2005, 07:22 AM)
Should this extraordinary bill, under such extraordinary circumstance be considered "passed"?
Should George Bush - or any president - sign such a "bill" into law?
Should George Bush - or any president - sign such a "bill" into law?
Sadly, there's nothing extraordinary about making law without quorums. I think the Congress violates the Constitution every time business is done without a quorum present, but for the better part of the past century most of the laws of the land were enacted without a quorum present.
Senators and reps know what is on the schedule, who is planning to be there and how the debate will go well before it actually happens, freeing them to spend most of their time politicking, and only attending sessions when they absolutely must (to wit a particular Presidential candidate's record as an absentee Senator). If any Senator didn't want the bill to be passed, they would have been present, which in their minds makes a de-facto quorum.
Lazy, yes. Unconstitutional, in my mind, yes. Extraordinary, no.
The lax rules about quorums are bad, but not as bad as the way the filibuster violates the Constitution every time it raises voring threshholds higher than stated in the Constitution. There is a place for the filibuster, but not on topics in which the voting threshholds are specified in the Constitution. I despise lax quorums, but I'd pick them over filibustering Constitutional issues every day of the week.
The sad fact is that business-as-usual in the Senate very often involves stretching the Constitution with respect to voting issues-- not just under the Republicans, but also for the many decades when the Democrats were in control. Both parties have a horrible record in colluding with one another to elevate their own traditions above the Constitution.
Should Bush sign it into law? If I were President I might veto any bill passed without a physically present quorum, just on principle, so everyone be happy I'm not President. Should Bush? He's got more harsh realities to deal with than I do. He should treat this bill like any other, weighing all the possible repercussions. If he truly believes the bill will do more harm than good, he should veto it and make Congress go on record.
It is theoretically possible for Bush to act like the Senate by leaving the bill on his desk and let it take effect without his signature or veto. That would really be the icing on the cake, but by that time, somebody would have starved to death, so it's not really an option.
Should this extraordinary bill, under such extraordinary circumstance be considered "passed"?
I certainly don't, no matter how many rationalizations are given for this action. It was crooked, plain and simple. The Senators involved should be called on the carpet by the ethics -- um, never mind.
Should George Bush - or any president - sign such a "bill" into law?
No president with an ounce of character would sign such a bill. I am hoping that the Supreme Court gets very riled up and exercises judicial activism. Knock the legislation down as being anti-American and censure the Senate and President Bush. The buck has to stop somewhere, or we've just lost our country to a bunch of . . . well, bad words that would be filtered -- so let's just call them nosey federal employees who think they rule the world.
I would not call these people conservative, as they are wearing total control freak, micro-managing clothing. That use to be a Democrat problem. Looks like improper government intrusion knows no party lines and has infected the Republican party to the core.
Add to this the abuse of power in trying to eviscerate the Judicial Branch and insulting our intelligence with irrelevant issues (like the marriage amendment), I do think we have a problem in Swamp City (DC).
I certainly don't, no matter how many rationalizations are given for this action. It was crooked, plain and simple. The Senators involved should be called on the carpet by the ethics -- um, never mind.
Should George Bush - or any president - sign such a "bill" into law?
No president with an ounce of character would sign such a bill. I am hoping that the Supreme Court gets very riled up and exercises judicial activism. Knock the legislation down as being anti-American and censure the Senate and President Bush. The buck has to stop somewhere, or we've just lost our country to a bunch of . . . well, bad words that would be filtered -- so let's just call them nosey federal employees who think they rule the world.
I would not call these people conservative, as they are wearing total control freak, micro-managing clothing. That use to be a Democrat problem. Looks like improper government intrusion knows no party lines and has infected the Republican party to the core.
Add to this the abuse of power in trying to eviscerate the Judicial Branch and insulting our intelligence with irrelevant issues (like the marriage amendment), I do think we have a problem in Swamp City (DC).
Considering that the Senate did not meet in secret, that everyone knew they were going to meet in "emergency" session, what is the appropriate thing to do?
Bush Flies To Capital Ahead Of Schiavo Bill
All it would have taken to demand a quorum be present is one objector to object to the absence of quorum. Apparently, this issue was not important enough for any opponent of the bill to stand up and say "We need 51 Senators here".
The sad fact of the matter is that voice votes happen all the time in the Senate. There is no guarantee that a quorum is present at such a voice vote. The number of votes and who is voting is not recorded.
Let's take a nightmare scenario and decide what is the appropriate action:
It's 1962 and instead of backing down from the Kennedy ultimatum, Khrushchev decides to attack the United States. Nuclear devastation is rampant, and many Senators are killed. Only 10 Senators survive the attack. Should the government be paralyzed in this scenario because they do not have a quorum? Or should the surviving members of the Senate be able to pass a declaration of war (for example) against Russia in order to give the President the power to respond?
I know that example is extreme, but the Senators considered this an emergency situation (given the fact that Schiavo had her feeding tube removed a day or two earlier). I don't agree with the Congress' decision to intervene, but I can certainly see their motive and their desire to act quickly. As I said, it would have taken only one Senator to actually show up (the link shows that they had notice) and demand a quorum. Of course, they thought that doing that would be politically damaging to themselves, so they did not do it.
Bush Flies To Capital Ahead Of Schiavo Bill
All it would have taken to demand a quorum be present is one objector to object to the absence of quorum. Apparently, this issue was not important enough for any opponent of the bill to stand up and say "We need 51 Senators here".
The sad fact of the matter is that voice votes happen all the time in the Senate. There is no guarantee that a quorum is present at such a voice vote. The number of votes and who is voting is not recorded.
Let's take a nightmare scenario and decide what is the appropriate action:
It's 1962 and instead of backing down from the Kennedy ultimatum, Khrushchev decides to attack the United States. Nuclear devastation is rampant, and many Senators are killed. Only 10 Senators survive the attack. Should the government be paralyzed in this scenario because they do not have a quorum? Or should the surviving members of the Senate be able to pass a declaration of war (for example) against Russia in order to give the President the power to respond?
I know that example is extreme, but the Senators considered this an emergency situation (given the fact that Schiavo had her feeding tube removed a day or two earlier). I don't agree with the Congress' decision to intervene, but I can certainly see their motive and their desire to act quickly. As I said, it would have taken only one Senator to actually show up (the link shows that they had notice) and demand a quorum. Of course, they thought that doing that would be politically damaging to themselves, so they did not do it.
QUOTE(Amlord @ Mar 23 2005, 07:45 AM)
Considering that the Senate did not meet in secret, that everyone knew they were going to meet in "emergency" session, what is the appropriate thing to do?
That is a fair point, and I have since learned that it wasn't some secret meeting, it was agreed to verbally before hand so the Democrats wouldn't have to be on record for this garbage bill which was going to pass anyway. Good strategy on Reid's part.
However, I still maintain that this is a dangerous abuse of power and a violation of the Constitution. There are very few things which should be deemed an "emergency" and in my opinion this whole Terri Schiavo mess isn't one of them. However this isn't the thread for that.
As you stated voice votes happen all the time, and I'm sure there have been plenty of sessions in the senate where a quorum didn't exist in our history. However as the article said, passing something like this with three senators is unprecedented. The fact that the loophole exists when the Constitution is clear is cause for concern in my mind. I'm not so much concerned about not having a quorum as I am about 3 senators being able to pass legislation.
Quite a few of the incidents in the House and Senate in the past few months have gotten me thinking. It seems that the rules governing the two have evolved past what is written in the Constitution and sometimes in violation of the Constitution. Things get done through voice votes, gentleman's agreements and backroom politics and it seems like that is something that it would be in everyone's best interests to clean up. There are established processes in place for a reason, and we aren't using them.
Now I'm not one of those people that thinks government should work as it did back in the 1700's because that would be foolish, but I think coming up with rules based on how things really work (or should work in today's world) and setting them in stone in the Constitution in the form of an amendment would be a good idea.
QUOTE(Cube Jockey @ Mar 23 2005, 12:50 PM)
Now I'm not one of those people that thinks government should work as it did back in the 1700's because that would be foolish, but I think coming up with rules based on how things really work (or should work in today's world) and setting them in stone in the Constitution in the form of an amendment would be a good idea.
Here's a proposal:
The Quorum and Filibuster Amendment
1. Where the Constitution says there must be a quorum present, it means there must be a quorum present. 2. Where the Constitution says a simple majority is sufficient to take action, a simple majority is sufficient to take action.
I know the wording is silly, but that's my point-- all an Amendment does is add words to (or strike them from) the Constitution. In this case, the words are already there. The only real recourse we have at this point is for the President or the Court to force Congress to take a textualist approach to the existing Constitution. If it's okay for the Court to take a "living Constitution" approach, then why can't Congress? There's a lot of winking and nodding going on so that one branch won't force the other to actually read the Constitution when attempting to determine what is Constitutional.
The problem in this case is not that the Constituton doesn't already say the right thing, it's that Congress, the Court and the administration have gotten in the nasty habit of taking a lot of leeway with the wording of the Constitution.
I join the CubeJockey in calling for more textualism in government!
QUOTE(Jack22 @ Mar 23 2005, 02:51 PM)
The only real recourse we have at this point is for the President or the Court to force Congress to take a textualist approach to the existing Constitution. If it's okay for the Court to take a "living Constitution" approach, then why can't Congress?
Back to the whole textualist vs. living constitution thing eh?
As I stated in the Constitutional Interpretation Thread textualism is just conservative-speak for judicial activism.So that isn't what I'm advocating here. I'm advocating a combination of:
1) Actually following what the constitution says - which would be a strict constructionist position
2) Taking into account that there were quite a few tricks the framers didn't anticipate (and I really don't think they anticipated anywhere near the level of partisanship and dirty tricks we have today) write new language to cover those situations by allowing them or banning them. By actually writing these things into the Constitution we take away the so called "nuclear option" from both parties as well as similar power plays.
This is a simplified version of our main content. To view the full version with more information, formatting and images, please click here.