No, it's not unconstitutional. Using his bullypupit power as president, JRE would push Congress to pass a law that would cut off its own health coverage unless it passes a bill covering everyone.

Dontchya think Edwards mighta run this by constitutional lawyers before making it a centerpiece of his campaign?

The 27th Amendment prevents Congress from raising its own salary. That was its intent, to stop Congress from enriching itself; it would be doing the opposite here. Plus it's not even clear that the 27th covers anything other than salaries.

Great gambit, great ad.

But I know that toughminded populism like this make some elite progressives uncomfy.

Since when has the constitution played a role in politics in the U.S.? Railing at Edwards while Bush and Cheney run amok is a bit infantile, don't you think? Who gave the Supreme Court the power to name the President? Power resides in the hands of those who seize it. There are no counter examples that I know.

I think former constitutional law LECTURER (read: he was never a professor) -- and my Con Law III teacher many years ago -- Barack Obama would probably point out that the 27th Amendment most certainly does not prevent the executive branch from *promulgating* (please note the use of this particular verb -- it is very important) regulations affecting Congress's health benefits.

Setting aside the issue of whether or not health benefits are compensation (they would be under current labor laws, though the interpretive guidance that those yield to this particular constitutional provision is questionable at best), "passing a law" (what Congress does with the President's signature) is separate and distinct from "promulgating a regulation" (what the President or his administrative appointees do sua sponte). This is a black letter law concept that comes up in a number of contexts, most notably McCarran-Ferguson reverse preemption.* A constitutional provision banning the former is certain circumstances would almost certainly have no effect on the latter.

Now, the timing of the amendment does make things a bit tricky. When Madison proposed this amendment, there really was no such thing as an administrative regulation (in fact, he probably would have said such devices are unconstitutional himself). So one could reasonably take the position that, since there was no bright line distinction between laws and regs, the amendment should properly be interpreted to cover both. BUT THE AMENDMENT WAS NOT ENACTED UNTIL THE 1990S! By that point, the people voting to enact it surely must have known the distinction between laws and regs. An interpretation suggesting otherwise is hogwash.

Furthermore, the traditional "a law isn't a reg" interpretation dovetails nicely with the purpose of the 27th Amendment -- it was designed to stop Congress from UNILATERALLY increasing its own salary. I've never read any contemporaneous secondary authority from around this time on the issue, but it would be a bit surprising if Madison was worried about something other than Congress voting to increase its own salary, and then overriding the President's veto of the increase.

If you are interested in this topic, Breyer and Sunstein have both written extensively on it. Especially with respect to Sunstein, his work is fairly accessible for non-lawyers.

And, by the way, this says nothing about whether the President is *legally* (not constitutionally) authorized to adjust Congress's health benefits. I assume that there is enabling legislation allowing him to do so (otherwise, why even suggest this course of action?), but if not, then what Edwards is proposing is not legal (i.e., authorized by statute).

And finally, GFR, I've always pooh-poohed suggestions that you have it in for Edwards, but, well, it looks like you have it in for Edwards.

* Basically, Mc-F says that the regulation of insurance is the business of the states, and in the case of a conflict between federal and state laws on a particular issue in this area, state law will trump absent explicit language in the federal law indicating Congress's desire to have the federal law apply. When this issue is litigated, it often turns on what constitutes a "law."

I think Garance ought to get her facts straight before she starts Edwards bashing. She's the same one that is suprised about the current ad that "Crazy" Tom Tancredo is running in Iowa.

Why is it unconstitutional? I don't recall any reference in the Constitution to an unrestricted Congressional right to health care insurance, or for any other branch of the government, for that matter. I say, have at it!!

I nominate former constitutional law professor Barack Obama, especially as the Hillary Clinton campaign hasn't been willing to elevate any of her competitors by going negative on them.

So let me get this straight: You think it would be wrong for Hillary to scold Edwards because she shouldn't lower herself to his level.

But you insist that Barack take Edwards on to prove he has the nerve to stand up for the constitution.

Why is it you never expect your own favorite candidate to take a stand?

This rubs me:

"...but Democratic voters there are also smart enough to understand that this is a promise to strengthen executive power at the expense of the Congress..."

I'm just guessing here, but that sounds, as a generalization, false. My guess is that some Democratic voters think of it in those terms, but most don't. Show me any poll that suggests that even a quarter of Democratic voters watch this ad and think about John Edwards overstepping Executive authority, dangerous precendents, etc.

It brings to mind a bit from George Carlin:

"...not all children are smart and clever, got that? Kids are like any other group of people: a few winners, a whole lotta losers."

joe:
i think your analysis is slightly off. The executive can't just pass any regulation it wants to -- it must be based on some grant of authority from Congress giving power to an adminsitrative agency in some area. And I would doubt that an executive agency oversees or otherwise has authority to alter compensation.

I think the substance to Edward's threat is that he would introduce legislation for Congress to pass, and not try to do this by himself...

Joe:

Does the president have the authority to regulate Congress' health benefits? Wouldn't his power to regulate (on this issue) only relate to the Executive Branch?

And my broader question is, assuming he's elected and goes forward with this plan, how does it affect his working relationship with the congress and ability to pass future legislation?

Looks like the statement from the Clinton campaign and GFR's post could have been written by the same person. Just wondering.

Seems to me a losing argument to say Edwards's proposal is "unconstitutional." Clearly, it's not, not if he intends to have Congress pass a bill to eliminate their own health care. You might argue whether that's likely to happen, but it's not unconstitutional. I think public sentiment would greatly favor Edwards in any case. Even Bush today is more popular than Congress, and he's well past his honeymoon.

As Cass Sunstein notes in, there may be Constitutional ways to do what Edwards is proposing.

http://www.politico.com/blogs/bensmith/1107/Sunstein_on_Edwards_healthcare_threat.html

"The executive can't just pass any regulation it wants to -- it must be based on some grant of authority from Congress giving power to an adminsitrative agency in some area."

Hence my caveat that I assumed there was enabling legislation. From what I subsequently read, there isn't. Which means (1) there is a strong argument that this wouldn't be constitutional legislation, and (2) it's all wankery anyway, because (as a number of people have noted), there is no way this would get passed by both houses.

Though to your second point, I definitely could see legislation giving the executive branch the power to implement Congress's benefit packages. This is something that the executive branch is going to have a lot more experience with (because it administers exponentially more employees than does Congress), and one could easily see Congress just saying "hey, negotiate health care benefits for us." But that too is wankery, because Edwards isn't proposing to act under some previously-passed admin agency enabling statute.

Just one note: Obama's title was "lecturer" because he had a second job, just like Judges Easterbrook, Posner and Wood at The Law School; he taught his classes just as any other professor would.

"The executive can't just pass any regulation it wants to -- it must be based on some grant of authority from Congress giving power to an adminsitrative agency in some area."

This is a good point. But moot. Presidents have been submitting budgets and legislative agendas for decades.

Congress could put them straight into the shredder, but they don't.

"Just one note: Obama's title was "lecturer" because he had a second job, just like Judges Easterbrook, Posner and Wood at The Law School; he taught his classes just as any other professor would."

No, his title was "lecturer" because he was not a tenured (or tenure track) professor. As the husband of a T-T professor, she would throw something at you if you called a lecturer "professor." The latter must be hired based on a rigorous selection process involving dozens or hundreds of candidates for the job. The former doesn't have to go through that.

If President Edwards fails to get this accomplished, will he agree to give up his Secret Service protection?

Everybody can play this game....

The Constitution... Oh yea... the idea that we live by the rule of law. The reality is the rule of law is treated as a joke!

This is just another hyped up agenda that is meaningless and simply thrown in your face to score a few points. What a pity!

There is but one choice to correct this country and its departure from the Constitution.

Inform yourselves and act!

The Constitution... Oh yea... the idea that we live by the rule of law. The reality is the rule of law is treated as a joke!

This is just another hyped up agenda that is meaningless and simply thrown in your face to score a few points. What a pity!

There is but one choice to correct this country and its departure from the Constitution.

Inform yourselves and act!

I do not have a law degree but it seems to me that the 'separation of powers' clause in the Constitution renders Edwards's threat largely meaningless

When has the constitution played a role in politics in the U.S.? Railing at Edwards while Bush and Cheney run amok is a bit infantile, don't you think? Who gave the Supreme Court the power to name the President? Power resides in the hands of those who seize it. There are no counter examples that I know.