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The 27th Amendment and Suspending Congressional Pay

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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8 Responses

  1. Shag from Brookline says:

    Perhaps Congress’ salaries should be based on meritocracy rather than equality. See David “Mel” Brooks’* NyTimes column today: Inequality in Congressional salaries based upon meritocracy may improve the performances of both the Senate and the House (despite the fact that especially in the Senate many are millionaires) for the good of our country. Let the “free market” rule; pay them what they are worth. Repeal the 27th!

    *David might take a peek at Mel’s flick “Life Stinks” to better understand the problems of inequality, as well as to read Joseph Stiglitz’s recent NYTimes Op-Ed on the subject.

  2. mls says:

    As a textual matter, it seems clear that “varying” includes decreasing, but less clear that it includes suspending. The history you describe might shed light on this question- it would be interesting to get more specifics.

    Given that the 27th was ratified over a 200 year period, it would seem to raise some challenges from the standpoint of determining “original meaning”

  3. Brett Bellmore says:

    So, the amendment does squat to actually require pay raises to be voted on before elections, it’s actual purpose, but will successfully block any effort to suspend their pay when they’re not doing their jobs.

    Funny how it always works out to the advantage of the people confirming the judges…

  4. Joe says:

    The “does squat” has not been shown.

    I would think the standing to sue might occur when the “varying” actually “takes effect” — that is, only if the salary is actually suspended, not some threat it might be.

    Who, I wonder, read that portion of the Constitution when the House did their thing & did s/he vote for this?

  5. Brett Bellmore says:

    “The “does squat” has not been shown.”

    Oh, come on, be serious. The 27th amendment was ratified in 1992, over two decades ago. Congressional pay has increased how many times since? Eleven. How many of those increases took place after elections as a result of votes prior to them? Why, none.

    Congress responded to the 27th amendment by delegating decisions concerning Congressional pay to an outside party, so they’d never have to vote on them, and the courts used standing excuses to prevent any challenges from being heard. The 27th amendment is effectively a dead letter.

  6. Louis Lanham says:

    The facts seems rather clear. BUT that is not to say they could vote of the bill…IF passed (a BIG IF) it would then be in effect after then next Houose election in 2014 meeting the stated requirements of…”shall take effect, until an election of Representatives shall have intervened.”would have been met. We can not stop this bunch of clowns but can curtail the next set of clowns that “join the circus”

  7. Joe says:

    “Standing excuses” … basic rules in place long before the 27A has been in place are followed. This what “excuse” means to Brett. Furthermore:

    “Congress in the Ethics Reform Act of 1989,417 altered both the pay-increase and the cost-of-living-increase provisions of law, making quadrennial pay increases effective only after an intervening congressional election and making cost-of-living increases dependent upon a specific congressional vote.”

    http://law.justia.com/constitution/us/article-1/13-compensation-and-immunities.html

    [lower court case involving Rep. Boehner cited in which the merits are in fact discussed in this fashion:

    http://openjurist.org/30/f3d/156/boehner-v-k-anderson-s-j

    “Squat” indeed. Brett might disagree with the interpretation, but that’s another matter. Finally, the amendment, in place all of 20 years, provides a limit to increases via, e.g., a mid-term measure. Or, something like this in fact, if it is challenged and/or comes into effect by actually affecting their pay. Again, by restraining Congress’ discretion, EVEN IF one thing they do seems unconstitutional, it does more than “squat.”

    The limited value of the 27A overall suggests a reason why it took so long to be ratified: Congress wasn’t wily-nily varying pay even w/o it. But, it provides some restraints.

  8. Shag from Brookline says:

    mls’:

    “Given that the 27th was ratified over a 200 year period, it would seem to raise some challenges from the standpoint of determining ‘original meaning’”

    might lead to more reservations on interpretation/construction of constitutional provisions, especially amendments that take many years for ratification. The current vogue of originalism looks to the understanding of ratifiers in determining public meaning as of the time of ratification. Should more emphasis be placed on this at the time that the last state ratifies the amendment or does an originalist go back over all of the ratifiers at various times during the 200 years to grasp a consolidated understanding of the ratifiers? Perhaps this is a job for the Superheroes of Originalism at the Originalism Blog.