Given the Congressional response when Senator Manchin declined to vote for the Build Back Better plan and the Voting Acts bill, I could not help but wonder if the 535 voting members of Congress had actually read the U.S. Constitution. Although replaced by gas prices, inflation, and gun control at the front of public fora, these issues continue to percolate in the coffee pot of Congress and those paying attention will note that, most recently, we hear from members of Congress urging the President to use Executive Orders to bypass Congress and implement sections of the Build Back Better plan, while the Vice President and others continue to warn that if the Federal Government doesn’t take over the conduct of elections democracy in the U.S. will fail.
Let’s deal quickly with the BBB first. The President does not have the authority to authorize funding for defeated bills in Congress. He may, in some circumstances but not all, move money already authorized by Congress but such actions are limited. All finance bills arise in the House and if Congress fails to pass the bill the President has little legal ability to implement portions thereof. If the President began issuing Executive Orders creating new programs, he would need to find the funding in non-fenced funds; that is, funds that were not exclusively allocated by Congress for specific programs. Taking funds from fenced programs is illegal and would be met with immediate court challenges. Additionally, such actions would be perceived by many as a move away from our democratize republic model to a government of authoritarianism.
As for the Voting Rights Act, members of Congress should be informed not just by the Constitution but the more recent findings of the Supreme Court regarding previous laws passed to assert federal control over state jurisdiction in setting voting practices and requirements. Such laws as proposed by members of Congress would be subject to Judicial review as to their Constitutionality since there are specific powers allocated to the states within the Constitution regarding elections. Such powers have been amended with the 13th, 14th, 15th, 17th, 19th 24th and 26th amendments to the Constitution suggesting that the provisions of the proposed new laws would also require amending the Constitution since transferring voting practice procedures to federal control is not provided for in the Constitution and thus cannot be changed through the enactment of a law. Such amendments would require a two-thirds majority in both houses of Congress and would then have to be ratified by 38 states.
The sponsoring members of Congress are attempting to use the previous model of enacting laws using other powers given to Congress to allow for Federal control of elections. The most common rationalization for these laws are racial in nature. For example in the famous Katzenbach vs McClung case the Supreme Court upheld the ability of the Federal government under the Civil Rights Act of 1964 to enforce private businesses to serve all customers regardless of race. The determining factor in this case, known as the Ollie’s Barbecue case, was the Constitutional power specified to Congress to control interstate commerce (known as the Interstate Commerce Clause or ICC). Since Ollie’s Barbecue’s meat providers used feed that had moved in interstate commerce Ollie’s was subject to federal law and thus must serve people of different races under the provisions of the Civil Rights Act of 1964. It was a stretch but the ICC has been used in a number of important cases to extend the jurisdiction of the federal government into areas previously regarded as being within the powers reserved to the states which as you all know is any power not specifically granted to the federal government is reserved to the states.
It would not surprise me to see Congress attempt to extend federal control to cover elections by passing a law creating some type of federal oversight provision based on the ICC or other laws already on the books that allow for federal over state authority. But I wonder how many of them realize that state control of elections is directly provided for in the Constitution and that proposed end runs can only be successful if the Constitution is first amended as it had been before Ollie’s Barbecue or Heart of Atlanta motel (another ICC case) under the 14th, 15th and 16th amendments.
Have they actually read the Constitution or are they just making it up as they go along?