I have to say it again: Congress is on the move to destroy the Article V movement whether it knows it or not. If Congress presumes to aggregate both vaguely similar and rescinded applications in calling a Balanced Budget Amendment convention under Article V, it would thereby claim the power to call a convention for which two thirds of the states have not, in fact, applied. Even if a properly organized convention devoted to proposing a balanced budget amendment resulted, the ends would not justify the means. The whole point of the Article V convention process is to allow the states to bypass Congress in the proposal of constitutional amendments. For this reason alone, the states expressed intentions in applying for an Article V convention should be absolutely paramount in determining whether to call a convention. The text and context of the Article V convention process give Congress only a mandatory ministerial role in calling a convention on application of two thirds of the states. The use of the singular form on application implies that two thirds of the states would apply for a convention by assenting to an identical request. Accordingly, Congress does not have constitutional authority to resurrect rescinded Article V applications nor does it have the kind of judgment and discretion that would be involved in trying to assess whether substantively different applications are close enough to hit the trigger point for its call. If Congress were to set a precedent for disregarding the expressed intentions of the states in mixing and matching non-identical and rescinded Article V applications, this would be a huge usurpation and consolidation of power in Congress over the Article V amendment process. However desirable the immediate results, it would clearly empower Congress with a discretionary role that the Founders never intended. Moreover, the resulting precedent would stand as a systemic threat to the success of any future Article V effort that might aim at limiting the power of Congress for two reasons. First, over the run of the political game, it is far more likely that Congress would use discretion in aggregating non-identical and rescinded Article V applications to foster amendment movements that would expand congressional power, rather than limit it. Second, the states would become far less willing to apply for an Article V convention process knowing that any such application could be treated by Congress as irrevocable and aggregatable with whatever non-identical application Congress deemed close enough, ultimately to produce a convention with an agenda the states never sought. In short, any move by Congress to aggregate non-identical and rescinded Article V applications in calling a Balanced Budget Amendment convention would almost certainly systemically neuter the growing Article V movement in the long run. Even if such a convention generated a meritorious Balanced Budget Amendment proposal in the near term (which is not guaranteed), that would be a small price for Congress to pay to quash the long term threat to congressional power posed by an Article V amendment movement that the states truly controlled and directed.
Posted on: Fri, 04 Apr 2014 16:48:26 +0000
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