112th Congress HR1255 – Government Shutdown Prevention Act of 2011

HR1255 provides a learning moment in the annals of American civics, for those who would learn…

It certainly leaves the tea party republicans no incentive to seek compromise or negotiate in good faith. In fact, it also gives them incentive NOT to raise the debt ceiling.

The Bill:

[Congressional Bills 112th Congress]
[From the U.S. Government Printing Office]
[H.R. 1255 Introduced in House (IH)]

112th CONGRESS
1st Session
H. R. 1255

To prevent a shutdown of the government of the United States, and for
other purposes.

_______________________________________________________________________

IN THE HOUSE OF REPRESENTATIVES

March 30, 2011

Mr. Womack (for himself and Mr. Woodall) introduced the following bill;
which was referred to the Committee on Appropriations, and in addition

to the Committees on Oversight and Government Reform, House
Administration, and the Budget, for a period to be subsequently
determined by the Speaker, in each case for consideration of such
provisions as fall within the jurisdiction of the committee concerned

_______________________________________________________________________

A BILL

To prevent a shutdown of the government of the United States, and for
other purposes.

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Government Shutdown Prevention Act
of 2011”.

SEC. 2. FUNDING THE GOVERNMENT FOR THE REMAINDER OF FISCAL YEAR 2011.

(a) Deadline for Consideration of Legislation Funding the
Government for the Remainder of Fiscal Year 2011.–If the House has not
received a message from the Senate before April 6, 2011, stating that
it has passed a measure providing for the appropriations for the
departments and agencies of the Government for the remainder of fiscal
year 2011, the provisions of H.R. 1, as passed by the House on February
19, 2011, are hereby enacted into law.

(b) Publication of Act.–In publishing this Act in slip form and in
the United States Statutes at Large pursuant to section 112 of title 1,
United States Code, the Archivist of the United States shall include
after the date of approval, if applicable, an appendix setting forth
the text of the bill referred to in subsection (a).

SEC. 3. TREATMENT OF CERTAIN PAYMENTS TO MEMBERS OF CONGRESS AND THE PRESIDENT.

(a) Treatment of Members During a Government Shutdown.–The
Secretary of the Senate and the Chief Administrative Officer of the
House, respectively, shall not disburse to each Member or Delegate the
amount of his or her salary for each day that—

(1) there is more than a 24-hour lapse in appropriations
for any Federal agency or department as a result of a failure
to enact a regular appropriations bill or continuing
resolution; or

(2) the Federal Government is unable to make payments or
meet obligations because the public debt limit under section
3101 of title 31, United States Code, has been reached.

(b) Treatment of the President During a Government Shutdown.–The
President shall not receive a disbursement of basic pay for any period
in which–

(1) there is more than a 24-hour lapse in appropriations
for any Federal agency or department as a result of a failure
to enact a regular appropriations bill or continuing
resolution; or

(2) the Federal Government is unable to make payments or
meet obligations because the public debt limit under section
3101 of title 31, United States Code, has been reached.

<all>

Analysis

First of all, it appears to be assigned to no less than 4 committees simultaneously. I’ve always understood that bills have to go from committee to committee sequentially. Otherwise, amendments could leave you with multiple versions of a bill – which cannot be. Unless, of course, no amendments are to be allowed – which in turn means that all discussion and debate is aimed not at the legislation, but at persuasion.

UPDATE: H. Res. 194 blocked any path for Democrats to alter the bill.

“All points of order against consideration of the bill are waived. The bill shall be considered as read. All points of order against provisions in the bill are waived.”

The “hear no evil, speak no evil” resolution.

UPDATE: H. R. 1255 has been passed by the House, making the number of simultaneous committees a rhetorical question.

“and for other purposes.”

Always a warning flag. It means that there is more to the bill than is reflected in the title.

Section 2:

“Deadline for Consideration of Legislation Funding the
Government for the Remainder of Fiscal Year 2011.–If the House has not
received a message from the Senate before April 6, 2011, stating that
it has passed a measure providing for the appropriations for the
departments and agencies of the Government for the remainder of fiscal
year 2011, the provisions of H.R. 1, as passed by the House on February
19, 2011, are hereby enacted into law.”

There are two issues here:

1. “the provisions of” is not terribly explicit. If they had at least stated “DIVISIONS A through C”, it would have shown at least a little legislative skill. I seriously doubt the legitimacy of a law that references or attempts to enact the language of another bill, which never became law in it’s own right.
   
2. This is the same sort of back-door legislative legerdemain that the republicans cried foul over, but without the cover of House/Senate rules. This is not the “deem and to pass” procedure despite the apparent similarities. The self-executing rule is a House rule that can only effect the authority of the House. It cannot speak for the Senate. The Senate already said no to the language of H. R. 1, so trying to enact it through the back door carries a decidedly anti-constitution stigma.

“(b) Publication of Act.–In publishing this Act in slip form and in
the United States Statutes at Large pursuant to section 112 of title 1,
United States Code, the Archivist of the United States shall include
after the date of approval, if applicable, an appendix setting forth
the text of the bill referred to in subsection (a).”

This is a sure sign that they know they are not doing this right, and need to tell the Archivist how to clean up their mess.

Section 3 has it’s problems as well:

“shall not disburse to each Member or Delegate the amount of his or her salary for each day that”

Let’s check the Constitution:

“No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.”

U.S. Const., Amend. XXVII

Oops, those “Read the Bill”/”Require each bill to identify the specific provision of the Constitution that gives Congress the power to do what the bill does.” people just gave themselves an egg facial.

UNCONSTITUTIONAL!

“The President shall not receive a disbursement of basic pay for any period in which”

Another trip to the Constitution:

“The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.”

U.S. Const. Art. II, sec. 1

The republicans aren’t even bringing their “C” game. If this is their best effort at “shall be bound by Oath or Affirmation, to support this Constitution”, then they need classes from non-conservatives. Whatever they learned from the conservatives does not pass muster. Or maybe they just do not understand the meaning of “shall”.

shall (merriam-webster)

“used in laws, regulations, or directives to express what is mandatory”

UNCONSTITUTIONAL!

“the Federal Government is unable to make payments or meet obligations because the public debt limit under section 3101 of title 31, United States Code, has been reached.”

This is the most insidious part of all. Even if an appropriations bill is passed into law, they could still shove H.R.1 down our throats just by thwarting efforts to raise the debt ceiling.

What is their justification?

By Mr. WOMACK:
H.R. 1255.
Congress has the power to enact this legislation pursuant to the following:
Section 2 is enacted pursuant to the rulemaking powers provided in clause 2 of section 5 of article I of the United States Constitution in furtherance of the appropriation power provided in clause 7 of section 9 of article I of the Constitution and spending power provided in clause 1 of section 8 of article I of the Constitution.
Section 3(a) is enacted pursuant to the rulemaking powers provided in clause 2 of section 5 of article I of the United States Constitution. Section 3(a) is consistent with article XXVII in that it does not vary the compensation of Members and Senators but only seeks to regulate its disbursement during certain periods.
Section 3(b) is enacted pursuant to clause 18 of section 8 of article I of the United States Constitution. Section 3(b) is consistent with clause 7 of section 1 of article II of the United States Constitution in that it does not vary the compensation of the President but only seeks to regulate its disbursement during certain periods.

And what do those clauses say?

“Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

U.S. Const, Art I, sec 5 – second clause

This clause has no applicability to section 2 of H.R. 1255. Law cannot be enacted by House rules. If H.R. 1 had been incorporated into H.R. 1255, then this would be a stand-alone bill. As it is, I do not see any “deemed to pass”  type language here. This is of particular concern because the Senate has already rejected the language of H.R. 1.

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

U.S. Const, Art I, sec 9 – seventh clause

No problem here.

“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;”

U.S. Const, Art I, sec 8 – first clause

No problem here either.

Personal Note: The preamble states “promote the general Welfare“ while this clause states “provide for the general Welfare“ – interesting variation in language.

Concerning section 3 of H.R. 1255:

The rules made by each House to proscribe the punishment of it’s Members do not withstand provisions in the Constitution.

It is not clear that “punish its Members” includes economic actions. Furthermore, “punish its Members for disorderly Behaviour” applies only when there is – DISORDERLY BEHAVIOR. Burning a budget on the House floor would be disorderly behavior, failing to pass one is not.

This section is intended to impair the people who would have to take action to start funding the government again. While most of them have their own funds to live on, not all have that kind of personal reserves. Just ask Sean Duffy. Not paying Congress or the President while they are working to fund the government could impair that effort. These are the people who MUST be on the job when nobody else is, if we are to have a government – and a country.

Also, there is no language to make up the missed payments. The bill explicitly states “shall not disburse” – which means that, contrary to Mr. Womack’s assertion, this does indeed “vary the compensation”.

There is no “article XXVII” in the Constitution. I presume this constitutional scholar means U.S. Const, amend XXVII. (Amendment 27)

Nit Pick: “Members and Senators” should be “Members of each House” if they want to be consistent with the clauses they reference. Otherwise, it should be “Senators and Members of the House” or some such. This is just mixing titles and designations.

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

U.S. Const, sec 8, eighteenth clause

This is a curious citation because the only application relevant to (3)(b) would be in support of paying the Debt, yet (3)(b) is about NOT paying a debt.

Again, there is no language to make up the missed payments. The bill explicitly states “shall not receive a disbursement” – which means that, contrary to Mr. Womack’s assertion, the President’s Compensation would indeed be “diminished during the Period for which he shall have been elected.

Lastly, the bill would have to be passed in both the House and Senate, and signed into law, on or before 8 April 2011, or it could not be anything but an unconstitutional ex post facto (retroactive) law.

“No Bill of Attainder or ex post facto Law shall be passed.”

U.S. Const, art I, sec 9, third clause

That would be a third strike on constitutionality alone.

Conclusion

With legislative sleight-of-hand, two unconstitutional provisions, a poison pill, and two ticking time bombs, this cannot be seen as a serious bill written by responsible people. It can only be seen as a propaganda tool to be used against the unwary. The most nefarious aspect is that it leaves republicans, especially the Tea Party caucus, NO reason to compromise or even negotiate in good faith. Further, it provides considerable reason NOT to raise the debt ceiling and let the government go broke. The negative consequences of this would be enormous.

You have been warned!

You have Rep. Steve Womack (R-AR) and Rep. Rob Woodall (R-GA) to thank for wasting your time, my time, and the limited time of the House of Representatives.

UPDATE: H. R. 1255 was passed by the House with 15 Republicans and all Democrats voting against it.

UPDATE: The republicans are still pushing this through the Senate.

UPDATE: With the passing of another continuing resolution, and particularly with passage of the pending budget bill, this bill would come into conflict with the deals already brokered. This bill is now beyond repair.

112th Congress H.R. 1255

• Ignoring the Law (Luis)
• They are skipping the Senate, seriously (Jack Burden)

Related Articles

• ‘Government Shutdown Prevention Act’ Undermines Democracy (usnews.com)
• Cantor Debuts Bill That Would Make GOP Budget Law Of Land Should Shutdown Become Imminent (huffingtonpost.com)
• ‘Pass the Damn Bill!’: Boehner Unloads on Senate Democrats over Looming Government Shutdown (blogs.abcnews.com)
• Shutdown Prevention Squad Jumps Into Action, Fails (opencongress.org)
• Incorporation by Reference and the Government Shutdown Prevention Act (aleksandreia.wordpress.com)