Wednesday, January 9, 2008

Perhaps we need a field guide to proposed constitutional amendments...

"To date, more than 11,000 amendments--many, of course, being redundant--have been proposed in Congress... Of these, only 27 have been ratified by the required three-fourths of the states."
--John R. Vile, A Companion to the United States Constitution and its Amendments (2nd ed.), Westport, CT: Praeger, 1997, p. 116.

Here's the thing to remember about Constitutional amendments: proposing them is as easy as winning a footrace with a three-toed sloth. Getting them ratified is only a little less difficult than winning a footrace with a cheetah.

So in a Presidential election year when talk of this amendment or that amendment gets tossed about, remember that chances are the talk will come to nothing. For the most part, any candidate who brings up amendment is just trying to win points in a political debate; he or she isn't harboring any illusions that a living, breathing Twenty-eighth Amendment is just around the corner.

Accordingly, you can imagine my shock when Mark Levin wrote that Mike Huckabee wants four amendments ratified:

Exclaims Levin: "And if anyone is counting, this makes four constitutional amendments Huckabee claims to be supporting: 1. the Fair Tax requires a constitutional amendment to eliminate the Sixteenth Amendment; 2. a Human Life amendment; 3. an amendment to define marriage; and now, 4. an amendment to end birthright citizenship."

Although it's not relevant to what I wish to bring up here, I am obligated to point out that the Huckabee camp quickly denied number four:

Whew! Good to know that a southern man does not support what is essentially a repeal of the Fourteenth Amendment, ratified during Reconstruction, isn't it?

What I actually want to address is Levin's comment that the Fair Tax would require a constitutional amendment to undo the Sixteenth Amendment. Not that I'm taking a position on the Fair Tax, but no, the country would NOT need to send the Sixteenth Amendment off into space with Prohibition in order to replace the current income tax with a national sales tax. The Sixteenth Amendment declares "The Congress shall have power to lay and collect taxes on incomes..." emphasis mine. It does not say "The Congress must lay and collect taxes on incomes and can tax in no other manner." A power granted need not be a power used; in Article 1, § 8 Congress is given power to declare war and I trust no one would argue this means they have to declare war periodically.

Mind you, if Levin were to retort that if the Sixteenth Amendment stays on the books the Fair Tax would be in jeopardy down the road, because even if Congress votes it in this year, a future Congress could easily eliminate it, I can't refute that. As a practical matter the Sixteenth Amendment might need to die to secure the Fair Tax--but as a Constitutional matter the existence of the Sixteenth Amendment does not stand in the way of implementing the Fair Tax.

I couldn't just leave the matter there; I had to do a bit more research to learn if Huckabee, a well-known supporter of the Fair Tax, himself believed as Levin does that a national sales tax only comes if the Sixteenth Amendment goes. So naturally I went straight to the candidate's website--and almost right away I saw something that jolted me:

Huckabee uses fourteen paragraphs to advocate the Fair Tax; not once does he propose repeal of the Sixteenth Amendment. Perhaps this means he has the same outlook I do, that he could get his national sales tax with or without amending the Constitution to jettison an amendment to the Constitution. He may even idealistically reason that once the Fair Tax is in place, no future Congress will dare reinstate an income tax even if they can for fear of facing an outraged electorate that is dancing for joy paying a sales tax instead of filling out forms to the IRS.

But here's the weird part: in looking to see if Huckabee wants to amend the Constitution as Levin asserts he does, I stumbled across yet another proposal by the Arkansas governor that probably would require an amendment--and this one is not even among the four Huckabee amendments that Levin tallies! Notice the fourth bullet point near the top of the page I've linked: "To control spending, I believe the President should have the line-item veto."

This, frankly, is like saying "To insure Executive continuity, I believe the President should be permitted to run for a third term." A line item veto probably can't happen without amending the Constitution, and we've been down this road very recently. In 1998, to be exact.

It was just ten years ago that the Supreme Court struck down the Line Item Veto Act Congress had enacted in 1997. The gist of Clinton v. City of New York 524 U.S. 417 is that Congress had violated the Constitution's Presentment Clause which states: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States. If he approve he shall sign it, but if not, he shall return it, with his Objections to that House in which it shall have originated..." (Article 1, § 7 ¶ 2). Citing these words and historical understanding, the High Court majority reasoned that the President can only approve or disapprove a bill in total; he cannot approve certain points of it and veto others, Clinton at 438-440.

Apparently Huckabee wants to take another shot at this just a decade later. Or maybe he doesn't; he just wants to be on record as saying he thinks we should have a line item veto whether we actually get one or not.

You will notice three paragraphs above that I write that it would probably take a Constitutional Amendment to get a line item veto now that the Supreme Court has called it unconstitutional. One might argue that because the vote in Clinton was 6-3, and since there has been a change in court personnel these ensuing ten years, perhaps all that is needed is another Line Item Veto Act by a new Congress that might get by a revamped Court when it's inevitably challenged.

But that's unlikely, because Constitutional opinion on this matter cuts across ideologies in a way we don't often see. The two Clinton appointees were on opposite sides here--Ginsburg joined the majority and Breyer dissented. The conservatives also disagreed; Rehnquist and Thomas joined the majority while Scalia dissented. So whether the next President is Mike Huckabee or another Clinton, and even if he or she has the chance to appoint two or three new Justices, matters aren't likely to change where a line item veto is concerned without a constitutional amendment.

So in sum, here's what happened: I read Levin's piece in which he says Huckabee supports four Constitutional amendments. I right away went to Huckabee's website to see if he really wanted an amendment to repeal the Sixteenth Amendment. And in learning that he does not say the Fair Tax would require a constitutional amendment, I learned he supports a line item veto that would require a constitutional amendment--and this wasn't even among the four amendments Levin asserts that the Arkansas governor supports! Kind of makes your head spin, huh?

That's an awful lot of footraces for Huckabee to have with three-toed sloths. But even if he reaches the Oval Office and doesn't put back on all that weight he lost, the smart money says he isn't beating any cheetahs to the finish line.

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