It may be constitutional, but getting Congress to pass enacting legislation is about as unlikely as Gravel winning the Iowa primary. This is a political stunt.

I'd love to see a Republican filbuster on this one.

Brian wrote on November 13, 2007 11:07 AM:
Argument from a middle income congressperson:
"You can't do this. It's unconstitutional. What am I supposed to do if my employer takes away my healthcare? I can't afford decent coverage, and if I could, no one would insure my son who is in need of intensive care for a tragic disease."

Come to think of it, the insurance industry wouldn't know what to do. Do they support this congressperson because he seems to be fighting for their interests? Or, do they oppose the congressperson because he is exposing the greed of the insurance industry? What a dilemma.

It's a stunt and it would alienate Cnogress and be counterproductive for a progressive agenda.

The constitutional argument offered by Edwards is as strained as anything coming from Bush (see below), but even apart from constitutionality, it's a transparent stunt, and a dumb one, feeding into all the often unfair stereotypes of trial lawyers.

As I understand it, the plan is that, on Day 1, Edwards asks Congress to pass a law that would deny Congress health coverage effective July 1 if Congress did not pass a universal health coverage bill by that date. The obvious flaw in this proposal is that it requires Congress on its very first day to make the decision that there must be a universal health care bill--it requires the key decision to be made before any debate.

Any Republican would easily be able to take the "heat" for a "no" vote, because the Republican can say: "First, I am not ready to vote for universal health care without seeing the final legislation. And Edwards is asking us to do that. Second, the worst possible environment in which we could operate if our goal is to get this important issue right is an environment in which it is in each Congressperson's personal self interest to pass some legislation by July 1 no matter how flawed the legislation might be. Why should we put a gun to our own heads and make decisions in the environment least conducive to rational public-minded decisionmaking? Third, not all of us are independently wealthy like John Edwards. For many of us, the income we get from this job is our only income."

Now, back to the Constitution. The Framers who drafted the constitutional amendment in question did not say that Congress cannot "increase the compensation" midterm, but rather that Congress cannot "vary" the compensation. This is significant on its face, but even more significant in context. Article I, Section 6 prohibits a member of Congress from accepting an Executive Office of the "emoluments" [compensation] were "encreased" during that term of Congress [18th century spelling of "increased". Article II, Section 4 of the Constitution prohibits Congress from "encreasing or decreasing the emoluments [compensation]" payable to the President. So the Constitution knows how to say "increase" when it means "increase," "decrease" when it means "decrease" and "vary" when it means either one.

A decrease is obviously a variance, and, after all the trashing of the Constitution we've seen under Bush, for Edwards to begin on day 1 by playing fast and loose with the Constitution would not be a propitious beginning.

Are you so sure that "compensation" Constitutionally means health-care benefits as opposed to just the lawmaker's salary? Is there a Supreme Court case on point?

I agree with Matt's point above. The timidity on display in various quarters this morning with regards to Edwards' proposal is disappointing.

Jake D: there are no cases on point specifically dealing with the 27th Amendment's definition of "compensation." Indeed, my quick research this morning on Lexis-Nexis indicates that there are only two cases that have directly dealt with 27th Amendment - Boehner v. Anderson, 809 F.Supp. 138, 139 (D.D.C. 1992), and Schaffer v. Clinton, (240 F.3d 878) - and neither reached the issue. If Congress wanted to battle it out in the courts, it would present a novel issue. But really: if Congress wanted to battle it out in federal court, that's a battle I think President Edwards would love to have. The political optics of it would be unfavorable for Congress to say the least.

Sorry, typing too fast:

Btw, did John propose stripping the Executive Branch of health care as well? Or would he and his family's insurance remain intact?

Thanks for double-checking, Will.

Geek, Esq.: as I pointed out in the first thread, revoking Congressional healthcare via Executive Order would be the LAST resort ; )

"Well, if they actually had been acting like one, we might not be in the mess we're in."

What? So the blame is Congress, not HRC, not the insurance companies, etc.? Frankly there is plenty of blame to go around, including the American people.

To me he's setting the stage for a fight at the beginning of his presidency that will poison the well for the remainder of his term. Why not at least TRY to work with the Congress first before threatening them? Just seems to me this is a poor initial strategy.

The Democrats in Congress might well support getting rid of their health insurance to ratchet up public pressure on the GOP and exposing the GOP as self-interested fraudsters.

Shii:

With all due respect, you're slightly mistaken. The case you're referring to is Schaffer v. Clinton, 240 F.3d 878, one of the two I cited. Schaffer, a Congressman, challenged Congress's adoption of COLA-indexed raises on the grounds that it violated the 27th Amendment.

But Schaffer never made it to the Supreme Court, as you incorrectly assert. It only reached the 10th Circuit. The district court dismissed his case on the grounds that the 27th Amendment wasn't violated by automatic COLA adjustments. The Tenth Circuit then dismissed Schaffer's appeal on standing grounds by holding that since he didn't suffer an injury, he couldn't challenge the law anyways.

Point being, there's no clear and definitive case law directly on point about the meaning of "compensation" as invoked by the 27th Amendment. It's an open constitutional question as to whether or not legislation along the lines proposed by Edwards would pass muster under the 27th Amendment.

1. Who provides the coverage for congress and federal employees? Medicare? Blue Cross? the VA?

2. Specifically I think he would probably approach it as increasing the portion of the coverage that the individual contribues, and possibly going to higher deductibles and out of pocket.

3. I'm with the folks who vote for showing some spine. I'm tired of being shat on by the Repuglicans. This is an issue that has overwhelming public support and it's completely transparent to everyone what's going on - there is no good reason to keep the system we've got, Medicare works great, and the only losers are the insurance companies. I am SOOOO tired of corporate earnings being the overriding concern of the elites in this country. I am READY for class war, I WANT class war. BRING IT ON.

This is an example of Hillary Clinton's political acumen. Rather than grandstanding threats to "take away" Congress' health care, Hillary flipped the equation. Her health care plan offers the EXACT CONGRESSIONAL HEALTH CARE OPTIONS to every American.

Politically, this puts incredible heat on members of Congress who would have to vote to deny their constituents the same coverage they enjoy. But, it puts the heat on them in a non-adversarial way.

BTW, Edwards has promised to spend the first year of his Presidency personally travelling to every Congressional district to rally voters to make their congressmen cut off their own health care. Personally, I think there are probably higher priorities for the President's time.

Will: Thanks for the clarification, I remembered it wrong.

Well, health benefits aren't considered taxable income, so perhaps they're not in the same category of "compensation" as (taxable) salaries.

More to the point, the 27th Amendment only slows down a change in compensation, it doesn't stop it. If a court found an immediate elimination of congressional health benefits to be unconstitutional, the remedy is delaying implementation until after the next election.

If Congress votes it down, Edwards wins.

If Congress takes him to court, Edwards wins.

Either way, Edwards wins this argument with the American people, because he is framing it, "Congress is saying they have the right to insurance, but all Americans do not."

Edwards wins that argument if Congress votes it down or takes him to court to protect their health care.

Constitutionality is irrelevant. It's about the bully pulpit making it's point.

If it's one thing the American people hate, it's people in power overtly giving them the middle finger, which saying they have a CONSTITUTIONAL RIGHT to health care, and other Americans don't even have a personal right to it.