From: mccall@mksol.dseg.ti.com (fred j mccall 575-3539)
Subject: Re: Who's weakening the constitution?
Organization: Texas Instruments Inc
Date: Thu, 17 Dec 1992 15:17:10 GMT

In <168BE7EBE.MCMASTER@LSTC2VM.stortek.com> MCMASTER@LSTC2VM.stortek.com (Jim McMaster) writes:

>In article <1992Dec14.151128.14046@mksol.dseg.ti.com>
>mccall@mksol.dseg.ti.com (fred j mccall 575-3539) writes:
> 
>>In <168BB7BFA.MCMASTER@LSTC2VM.stortek.com> MCMASTER@LSTC2VM.stortek.com (Jim McMaster) writes:
>>
>>>In article <1992Dec11.115535.21484@mksol.dseg.ti.com>
>>>mccall@mksol.dseg.ti.com (fred j mccall 575-3539) writes:
>>>I don't see how you can have a workable line-item veto without putting
>>>some requirements on the President.  With the current veto power, he
>>>must return the bill to Congress, with his objections in writing within
>>>a certain time-period, else the bill becomes law without his signature.
>>
>>Seems quite simple to me.  Congress simply writes rules FOR ITSELF on
>>how it should deal with vetoed legislature.  The rules for the
>>President stay the same.  He returns the bill with a list of his
>>objections.  Except now, his objections CAN include 'line items'.
>>Congress then requires itself to resubmit the bill for approval with
>>the objected to line items stricken and those resubmitted before
>>Congress separately with a requirement for a 2/3 vote for passage.
>>
>I don't believe Congress can modify the bill at all before the veto
>override vote.  It must be passed as it stands with a 2/3 vote, up or
>down.  If they change it, it becomes a new bill.
> 
>The President can do exactly as you suggest...he can include line items
>in his veto message now, with a "remove these and I will sign it".
>Congress can then override the veto, or remove the items and pass the
>modified bill.  How does this differ from your proposal?

The Congress is not currently obligated to resubmit the unobjected to
items of the bill for approval separately from those which are
'stricken' by the veto.  This allows them to hold good things
'hostage' in order to try to ram through something they want.
Congress should pass rules REQUIRING itself to resubmit minus the
objected to line items and with no other changes.

>>>
>>>If he vetoes a line-item, but signs the bill into law, would he have to
>>>return the bill to Congress for a possible override?
>>
>>Legislatively enacted, it couldn't work like that.  But then, I doubt
>>it would work that way anyway.  I would expect that Congress would
>>have to resubmit the bill minus the offending line items.
>>
>Then how does that differ from the current process?  Congress can do
>that right now.  No line-item veto legislation is needed, if the
>President has the intestinal fortitude to use the power he already has.

I trust my prior explanation shows how it would be 'different' from
the current system.

> 
>>>Under the current
>>>rules, no.  He has signed the bill, not vetoed it, so there is no
>>>provision for its going back.  I cannot imagine Congress's giving the
>>>President an override-proof line-item veto, can you?  There would have
>>>to be an override provision, which would impose requirements that the
>>>President return the vetoed line-items to Congress, which do not
>>>involve "the way Congress conducts its own business."  I do not believe
>>>the Congress has the power to do this.
>>
>>Because you can come up with a way of implementing it that doesn't
>>work does not make all ways of doing it unworkable.
>>
>Then come up with one that does work, that does not violate the
>Constitution.

I just did.  But Congress has to make the rule for itself.  Just to
lay it out, the President gets a Bill and line-item vetos parts of it,
returning it to Congress.  Congress has a rule which requires them to
take a 2/3 vote on each of those line items to see if they remain in
the bill.  Those which fail the 2/3 vote are stricken and the Bill is
then returned to the President.  Note a couple of things about this.
First, it changes only what CONGRESS does -- which they can do under
their own procedural rules, according to the Constitution.  The
President does NOT need to sign the new Bill, although he's going to
look pretty damned bad if they give him what he wants and he then
refuses to sign.  Besides which, since the things he objected to in
the prior version of the Bill have already been approved by a 2/3
vote, it would be pretty futile to veto it again (since Congress has
already demonstrated that they can and will override).

So, where is this unconstitutional?  How is it different from
'enhanced recision', which both Congress and the President (present
and incumbant) agree that Congress has the power to do?

>>>
>>>As another example, the Constitution states very explicitly that all
>>>revenue measures must originate in the House.  Could not Congress give
>>>the Senate that power as well, since it only affects the manner in
>>>which Congress conducts its business?  Or would that require an
>>>amendment?
>>
>>That would require an amendment because the wording in the
>>Constitution is quite explicit about the restriction on the powers of
>>Congress in this regard.  It is not, however, the same thing at all.
>>
>Why not?  The wording on the veto power is just as explicit.

Not exactly, no.  The veto power is described, but how Congress deal
with it to get a 2/3 override vote is THEIR business.

>>>>>>>
>>>>>>>It is the same with term limits.  The various state laws restricting
>>>>>>>terms in Congress are unconstitutional in my opinion, and will quite
>>>>>>>likely be thrown out as soon as they are challenged.  If we want to
>>>>>>>limit these terms, we need an amendment, like the one that limited
>>>>>>>presidents to two terms.  Personally, I would rather see that amendment
>>>>>>>repealed than to add another....I think term limits are a bad idea.
>>>>>>
>>>>>>Term limits are a slightly different matter.  To impose them
>>>>>>nationally would certainly take a Constitutional amendment.  However,
>>>>>>for states to do this to themselves on a state by state level would
>>>>>>seem to be perfectly Constitutional.  Is there anything in the
>>>>>>Constitution that states that additional requirements may not be
>>>>>>imposed by states on qualifications for office and who is allowed to
>>>>>>run and how?  If not, this falls under the "unspecified powers
>>>>>>reserved to the States, or to the People" clause, I would think.
>>>>>>
>>>>>The Constitution says I have a right to run for Congress if I am 25
>>>>>years old and a citizen.  Should I lose that right just because I
>>>>>happen to live in a state with term limits?

Not quite what it says.  It says that in order to run you must meet
those minimum qualifications.  It doesn't say that if you do meet them
you are entitled to run.  Slightly different.

>>>>
>>>>Yes.  Just as the way you pick your electors for President can be
>>>>changed on you, depending on which state you live in and how they
>>>>decide to do it.
>>>>
>>>I don not get your drift.  Changing the manner in which my state picks
>>>electors does not deprive me of any right granted by the Constitution.
>>>I still get a vote, although the outcome may be different than in
>>>another state.
>>
>>Well, let's look at this a couple of different ways, then.  First from
>>the elector viewpoint.  Say that the state simply says that under its
>>rules, no elector who will vote for a candidate who has previously
>>served more than X terms may be selected.  That would seem to be
>>within the State's power, under their contorl of how they choose
>>electors.  You now have de facto term limits in that state, since any
>>votes for a candidate for whom the process of choosing electors will
>>not allow an elector to be chosen for is pretty much out of the
>>running, no matter how many votes they get.
>>
>There are state laws now that specify how electors must vote.  These
>are widely viewed as unenforceable, and would likely be thrown out if
>challenged.  Electors are federal office-holders, not state, and state
>restrictions on voting behavior of federal officials are very likely
>invalid.  Also, how can they tell for whom an elector will vote?

Ask them.  The States are EXPLICITY allowed to pick electors any way
they please.

> 
>>Now, let's go back to the Constitution for a moment.  Look at the
>>workding on requirments to hold office.  It sets MINIMUMS.  It does
>>not anywhere state that those AND ONLY THOSE qualifications may be
>>required.
>>
>It also does not say anywhere that any other requirements can be added.

Yes, and it does not explicitly say that they can't, and powers not
explicitly described are reserved to the several States or the People,
respectively. 

>That is why the case will go to the federal courts, where the issue
>will be decided.  In my opinion, the laws will be overturned.  In
>yours, they will not.  Let's wait and see, because neither of us knows
>for sure.

Well, we've now gone from what the decision OUGHT to be to trying to
guess what the Court will decide.  Note that these are NOT the same
thing. 

>>>
>>>The Constitution states the qualifications for election to Congress
>>>quite clearly, as it does for elections to the Presidency.  Changing
>>>those qualifications for the President took a Constitutional
>>>Amendment.  I do not see why changing the qualifications for Congress
>>>should be any different,
>>
>>No, it states THE MINIMUM REQUIREMENTS.  There is nothing that says
>>that states may not add others, as they please.  For example, it
>>specifies that House members shall be chose in the same manner as the
>>most numerous of the State's legislative houses.  If a state enacts
>>term limits on the most numerous of its legislative houses, that would
>>seem to put term limits in place for the corresponding Federal offices.
>>
>Good point...you might be right.  How does that limit the terms of
>Senators?

The 17th Amendment says that Senators are subject to the same election
process as Representatives.  It limits the terms of Senators just the
same way it limits the terms of Representatives.

>>>
>>>Consider a hypothetical situation:  Suppose, say, New York had passed
>>>a state law in 1938 that no person who had served two terms as
>>>President could appear on the ballot in that state.  Would that have
>>>been Constitutional?  They would not have passed any national term
>>>limit, merely the election procedures for their own state.  What if
>>>California today passed law that no one who had served a single term
>>>as President could appear on their ballot?  Or no one under six feet
>>>tall?  Again, they are merely changing election procedures.
>>
>>Quite correct, and I would maintain that the can do any of those.  How
>>is this different from peitition requirements or any of several other
>>requirements levied on candidates.  You are simply adding one more
>>requirement.  The only thing that I can see that might cause a Federal
>>court to overrule this is the fact that the Presidency is not an
>>office for State representatives at the Federal level.  However, I
>>would question even that, since the Constutition explictly states that
>>States may define the process by which they select Electors.
>>
>Wow....you really think a state could require that only Presidential
>candidates (not electors) over six feet tall can appear on the ballot?
>REALLY?!?!?  How about only Caucasians?  This is far more than deciding
>the "process" by which electors are chosen.  Courts have ruled that
>ballot restrictions are valid for the purpose of keeping the ballot to
>a reasonable length.  What valid reason could they possible have for
>height requirements?  I think you might want to rethink your response.

No, I don't think I care to rethink my responses at all.  Except in
those cases where other parts of the Constution explicitly prohibit
making a distinction (race, color, creed, religion, gender) it would
seem that a State could make whatever arbitrary rules it wanted to.
Of course, that would probably be difficult to sustain in the face of
an activist Court, but are we talking about what the Court might do or
what the Constitution says?

>>>
>>>>>The 14th Amendment might even come into play here.
>>>>
>>>>I'm afraid I don't see how you could construe a state enacting term
>>>>limits as violating the 14th Amendment.  However, an argument could
>>>>perhaps be made that Section 5 gives the Congress the right to
>>>>LEGISLATE term limits, if you consider the provisions of the 14th
>>>>Amendment to hold sway here.
>>>>
>>>I was thinking of the equal protection clause, denying me a right I
>>>would have if I lived in another state.  Perhaps it does not apply, but
>>>who knows what a court would say?
>>
>>OH, I didn't miss that that was your INTENT.  I simply don't see it as
>>applying in the case of term limits.
>>
>I said MIGHT, and I still say it might.  Can you honestly say you can
>predict the outcome of a Supreme Court case where this was argued?  I
>can't.

Neither can I, but note that what the Constitution says and what the
Court might decide are two different things.

>>>
>>>>>Again, if we want term limits (a very bad
>>>>>idea in my opinion), I think they need to be imposed via the
>>>>>amendment process.
>>>>
>>>>I understand that, but I haven't seen convincing evidence for
>>>>believing that to be the case.  Keep in mind that, in general, the
>>>>Constitution explicitly grants powers to the central government that
>>>>it wanst the central government to have, and that anything else is
>>>>reserved to the States or the People.  Hence, anything not spelled out
>>>>must be a power that is so reserved.
>>>>
>>>As above, then why did Congress feel Presidential term limits required
>>>a Constitutional Amendment?  The issues are the same.  Qualifications
>>>are spelled out in exactly the same detail.
>>
>>Because they wanted them in ALL THE STATES.  They didn't want a state
>>here and state there to do it.  In order for the Feds to impose such a
>>requirement on the States, essentially telling them how they may
>>choose Electors, they would indeed require a Constitutional amendment.
>>Howeer, a State may impose any requirements on itself that it wishes,
>>or so the wording in the Constitution seems to say.
>>
>Is this your supposition as to why they passed an amendment?  Or do you
>have some evidence that supports you?  I certainly do not remember any
>such assertion at the time (of course, I was about four then ;-)).

This requires evidence?  Is it your contention that they DIDN'T want
them in all States?  Seems like that would be the one requiring proof,
not the other.

>>>>>>>
>>>>>>>The point of my earlier post is that the person who started this thread
>>>>>>>was complaining about weakening the Constitution and for following the
>>>>>>>original intent of the framers.  Meanwhile, he proposed changes which
>>>>>>>did not reflect the original intent, and in a manner which further
>>>>>>>weakens the Constitution.
>>>>>>
>>>>>>Not at all.  That may have been your point, but it appears to me to
>>>>>>have missed the mark.
>>>>>>
>>>>>Your opinion, and you are entitled to it. (**)
>>>>
>>>>True, but it all comes down to how good your reasons for holding an
>>>>opinion are.
>>>>
>>>And the quality of your reasons for holding an opinion are porely a
>>>matter of opinion.
>>
>>Getting a bit silly, isn't it?
>>
>Yes, it was silly when you started it....why did you start it. by the
>way?  Shall we drop it?

Well, no, since we can now quibble about how started it.  My vote is
the (**) line above.

-- 
"Insisting on perfect safety is for people who don't have the balls to live
 in the real world."   -- Mary Shafer, NASA Ames Dryden
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