Financial rescue legislation: Is the Constitution irrelevant?

The presidential campaign of Sen. John McCain has made much   of Democratic vice presidential candidate Sen. Joe Biden’s incorrect interpretation of the constitutional role of the vice president. In last week’s vice presidential debate, Biden, who’s been in the Senate for three decades, also mistakenly stated that the executive branch is defined in Article I of the Constitution. As many sources have noted, Article I describes the legislature, while Article II describes the duties of the executive branch.

If Biden’s gaff is significant, one has to wonder how McCain could throw his support behind the recently passed “Emergency Economic Stabilization Act of 2008, Energy Improvement and Extension Act of 2008 and Tax Extenders and Alternative Minimum Tax Relief Act of 2008 (HR 1424).”

In addition to authorizing the secretary of the Treasury to develop a plan to purchase the so-called “toxic assets” of the financial industry, HR 1424, which originated in and was initially passed by the Senate, also provides authority for the federal government “to amend the Internal Revenue Code of 1986 to provide incentives for energy production and conservation, to extend certain expiring provisions, to provide individual income tax relief. Interesting because, according to the Constitution, “All bills for raising revenue shall originate in the House of Representatives.”

“That in itself was unconstitutional but it’s been done before and it will be done again,” Rep. Ron Paul said of the Senate-initiated tax changes.

‘A very bad bill’

But that is not the extent of the constitutional questions about the Rescue Act.

“It’s amazing, you take a very bad bill, appropriating $700 billion, you can’t get enough votes to pass it so you take it back out, you make it much worse and take it up to over $800 billion,” Paul added.

“Today is an even sadder day than on Monday,” Paul said. “Here today when the special interests got their two cents in, or their $10 million worth of lobbying in, the members switched their vote. Fifty-seven switches, many of them conservatives.”

Among the vote-switch sweeteners added to the Rescue Act was the “Paul Wellstone-Pete Domenici Mental Health Parity and Addiction Equity Act 2008,”  championed by retiring Republican Rep. Jim Ramstad of Minnesota’s Third District.

As reported by, Ramstad originally voted against the package, calling it a plan that “imposes great risk to taxpayers and no guarantee of success.”

But once the mental-health legislation was added to the bailout package in the Senate, Ramstad faced the choice of “voting against the bailout and potentially sink his life’s work or support a plan that he simply didn’t agree with.”

On Thursday, Ramstad announced he would vote for the measure. “The inclusion of [mental health] parity, tax extenders and the F.D.I.C. increases has caused me to reconsider my position,” Ramstad told the New York Times.

How we got into this mess
Nothing much changed; the Rescue Act was still a plan that “imposes great risk” with “no guarantee of success,” but nonetheless Ramstad voted for it, but only after unconstitutional tax elements and his pet parity bill were added to the act. Protecting, preserving and defending the Constitution would seem to be more significant than a bill he “simply didn’t agree with.”

The Mental Health Parity Act “amends the Employee Retirement Income Security Act of 1974 (ERISA), the Public Health Service Act, and the Internal Revenue Code to require a group health plan provide both medical and surgical benefits and mental health or substance use disorder benefits.” One would be hard-pressed to find exactly where the authority granted to Congress to define the products of private sector companies is found in the Constitution.

We have two presidential candidates, two major political parties, for whom the Constitution is apparently fundamentally irrelevant. Republicans get bent out of shape when Joe Biden misstates the article defining the role of the vice president; Democrats make political hay out of the Bush administration’s cavalier attitude toward civil rights. Yet they come together in passing the most significant piece of legislation in recent memory with total disregard for the unconstitutionality of its substance and the unconstitutionality of the process by which it was drafted and passed.

Ironically, disregarding the Constitution  is what got us into this mess in the first place.

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Comments (4)

  1. Submitted by Aaron Petty on 10/08/2008 - 12:13 pm.

    Sweet! A TARP (Troubled Asset Relief Program) to live under. Get used to it.

  2. Submitted by Tom Poe on 10/08/2008 - 02:14 pm.

    “The Vice President of the United States shall be President of the Senate but shall have no Vote, unless they be equally divided.” Article I, Section 3.

    Other than the above statement, what would you point to that would support your claim that Biden misrepresented the role of the Vice President in the Senate, by not referring to language in Article II? Is there anything you can provide readers that might give credence to the argument that the Vice President has any role, other than the above, to play in the Congress?

    I understand you are just reporting what the McCain campaign is claiming, but shouldn’t you be informing the readers when doing so?

  3. Submitted by Craig Westover on 10/10/2008 - 10:06 am.

    Good point vis-a-vie “informing.”

    Biden said the vice president’s only role is to support the president and to preside over the Senate “only in a time when in fact there’s a tie vote. The Constitution is explicit.”

    Constitutionally, the vice-president has the authority to preside over the Senate at all times, should he or she so choose, which includes all the parliamentary powers of the chair. The power of the chair is no mean influence on activities of a deliberative body.

    One such parliamentary power is interpreting the rules of the Senate, which can include the power to define and control votes and closure rules on debate. The vice-president, as presiding officer of the Senate, can be over ruled by 60 Senators, but that supra-majority is not easy to achieve. The presiding chair has considerable power — as Biden a 30-year Senate veteran ought to realize.

    In addition, under the 25th Amendment, the vice president plays a significant role in the event a president declares himself or must be declared incapable of fulfilling the role of president. This raises questions that Gov. Palin might very well have to face.

    Recall that before the 12th Amendment was passed in the 1880s, electors only cast votes for president of the United States. The candidate with the second most number of votes was declared “vice president.” Essentially the vice-president was the greatest presidential challenger and likely held a different political philosophy than the president. Under that scenario today, we would likely have, in some order, a McCain-Obama, Obama-McCain, administration.

    That situation yields two results: The vice president is not likely to be a powerful person within the executive branch, but he or she can be a thorn in the side of the administration as president of the Senate. As presiding officer of the Senate, the vice-president is a very visible leader of the loyal opposition — even when both houses of Congress might be controlled by the same party.

    After the 12th Amendment, electors cast separate votes for president and vice president, essentially ensuing that both were of the same party – the “ticket” concept of the two-party system. Under this system, while the vice-president has no additional constitutional powers, he or she may carry out any constitutional executive power delegated by the president — by formal delegation or by influence. As executive power has expanded (due to congressional abdication of authority and expansion of government intervention in private affairs) so too has the opportunity for vice presidential activities.

    There is much wisdom and consistency in the system set up by the founders, and we tinker with it, to our peril.

  4. Submitted by Craig Westover on 10/10/2008 - 10:17 am.

    oops — fat fingers. the 12th Amendment was passed in the early 1800’s, not the 1880s. Sorry.

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