Can't We Just Sue Congress?

Or maybe it's simpler taking their paychecks away

by Charles Ellison | Publisher’s Riff | @ellisonreport

Congressional Republicans could - very simply - help re-open the government by simply corralling enough votes in both the House and Senate to arrive at the two-thirds vote needed to override any Presidential veto of the federal budget. But Congressional Republicans - led by Senate Majority Leader Mitch McConnell (R-KY) refuse to do that, claiming that not only is he awaiting a deal between Congressional Democrats and the White House, but he also needs approval from the president.

As the nation inched closer than ever before towards a full month’s federal government shutdown, there was quite a bit of commotion in Washington this week as House Speaker Nancy Pelosi (D-CA) seemingly struck President Trump where it hurt most: suggesting that he not visit Capitol Hill to deliver his annual State of the Union. The president pushed back, going so far as to instigate a security risk to Pelosi’s foreign travel. Meanwhile, a major shoe dropped hard in the ongoing Trump-Russia collusion cases.

Many characterized Pelosi’s move as an appropriate move while others did not. But it telegraphed a simple point to the anxious public looking on: What ‘Union’ do you report the ‘State of’ when much of it is shutdown? And the subtle dis-invite (since Congressional Democratic Party leaders didn’t want to fully own the enormity of what was being proposed) left the president without much of an opportunity to give the impression that his administration was running smoothly when, well, it just isn’t. That dis-invite has since turned into a tit-for-tat as the president just spits back.

Still, Pelosi’s move, as much of a momentary rush that was for supporters and partisans, didn’t move any needle. More than a quarter of the government remains shut down and the ripple effects are being felt widespread. Whole functions of the federal government are either paralyzed or nearing paralysis. Sectors of the economy are feeling the crunch, so on and so forth.

Meanwhile, Congressional Republicans remain largely off the hook for the current crisis.

Which brings to mind two questions: 1) Why haven’t Congressional Democrats sued Congressional Republicans? 2) Could states do that instead? And 3) Why are Members of Congress still getting paid?

Should We Sue Congress?

It’s an interesting point worth further exploration. Disclaimer: The author is not a lawyer or a Constitutional law expert. But the magnitude of the federal government being shutdown, particularly as it presents a real, potentially disastrous threat to national security, should prompt those concerned to explore as many avenues of recourse as possible. Clearly, Congress is not meeting its most basic, necessary obligation: keeping the government functioning. That’s the whole purpose of a legislature.

Senate Democrats, interestingly enough, did recently sue Senate Republicans over 1) not releasing documents relating to the Brett Kavanaugh Supreme Court confirmation back in September and they did sue 2) to block the earlier nomination of acting Attorney General Matt Whitaker back in November.

And we are familiar with the litigious tendencies of Congressional Republicans during the Obama administration: indeed, a 2014 lawsuit against the Affordable Care Act that was pushed by House Republicans under then-Speaker John Boehner (R-OH) sits in a state of “abeyance” in federal court.

But why hasn’t that move been considered by Congressional Democrats? And, if they did, is it a viable strategy? Would it re-open the government or would it, simply, help apply public pressure to Congressional Republicans since they continue to evade blame in recent polls?

It would seem, on its face, sensible - to, at the very least, press the case. The government could have been re-opened at the start of the new Congress on January 3rd (see Article I, Section VII of the Constitution). All Senate Majority Leader Mitch McConnell (R-KY) had to do is quietly muster the GOP caucus votes to team up with Democratic House and Senate caucus votes to ultimately generate the two-thirds vote that would override any presidential veto of a funding package that didn’t contain the border wall request. However, McConnell has decided against that, repeatedly deferring to the president.

But, whatever happened to checks and balances between the separate branches of government (Article I, Section I)? McConnell’s deference to the president could, theoretically, be viewed as the Senate leader ceding legislative branch authority to the president. And that’s especially dangerous given the current situation - in which McConnell and others refusing to re-open the government could be interpreted as 1) an abdication of their Senate oath, 2) a violation of those checks and balances, as well as 3) a rejection of duties laid out in Article I, Section VIII, and 4) a violation of their duties under Article IV, Section IV, where Congress is mandated to ensure national defense. Somewhere in the Constitution this all feels like serious dereliction of duty.

And, at the moment, full national defense is obviously not being provided. So, why not sue the Congress? Well, it’s complicated, of course. As one colleague puts it: “a responsibility, maybe. But a constitutional requirement? No.”

Here’s Georgetown University’s Vicki Jackson attempting to unpack that.

Maybe States Could Jump In and Sue, Instead

That’s a possibility, especially since states rely on federal funding or federal funding reimbursements for a wide range of programs currently impacted. As USA Today reports: “On average, about 33 percent of each state's revenue comes from the federal government.” That represents not just, once again, the basic security the federal government must provide to states (per the Constitution), but funding for these programs is guaranteed. States will also find themselves in the predicament of laying employees off who rely on federal government funding streams, a major blow to the economic health of states.

Should Congress Stop Receiving Paychecks?

That is a fair question. If suing them is too hard, just hit their purses. One can argue that Congress should have already prioritized legislation suspending Congressional pay until the government re-opens. Particularly when the household median wealth of a U.S. Senator is $3.2 million and that of a U.S. House member is nearly $1 million. So, why should they have the opportunity to collect extra wealth, not to mention enjoy the perks of federal elected office? Rep. Kurt Shrader’s (D-OR) bill banning Congresional pay during a shutdown is a good step that should be prioritized by lawmakers, as is Rep. Ralph Norman’s (R-SC) more extreme proposal. But, hey, whatever works ….

That hasn’t happened yet, however, neither side is pushing for such changes. In the meantime, both House and Senate members continue receiving $174,000 in annual salary as more than 800,000 federal workers go unpaid, including hundreds of thousands being forced to work. Reportedly, some 102 combined Members of Congress have opted to reject their pay out of a show of solidarity with federal workers (and, curiously enough, some high profile names are missing).