So, yes, if you’ve stopped by lately you’ve noticed that I’ve been a bad blogger. Between trial work and other assorted upheavals (insert yada, yada, yada here) I just haven’t been able to devote much time to this endeavor.
But things have calmed down slightly, and my pal Bob of The Four Freedoms blog (@BobberDC on the Twitter Machine) reminded me today that Pauls are gonna Paul.
Meaning, in this case, Sen. Rand Paul’s gonna Paul.
Where “Paul,” as a verb, means “to act like a loony.”
To-wit: earlier this month, Sen. Paul introduced something he calls the “One Subject At A Time Act,” S.B. 3359, which is the handiwork of a right-leaning think tank called Downsize DC. On its face, S.B. 3359 seems like a reasonable idea. The gist of it is contained in Section 2, which provides:
(a) One Subject– Each bill or joint resolution shall embrace no more than one subject.
(b) Subject in Title– The subject of a bill or joint resolution shall be clearly and descriptively expressed in the title.
(c) Appropriation Bills– An appropriations bill shall not contain any general legislation or change of existing law provision, the subject of which is not germane to the subject matter of each such appropriations bill; provided, however, that this section shall not be construed to prohibit any provision imposing limitations upon the expenditure of funds so appropriated.
Okay, fair enough. It would be nice if Congress tackled individual problems directly, addressing the merits of each issue head-on and without political game-playing. How many times have we seen one party or the other tack some odious provision onto an otherwise popular bill in order to make it politically untenable to pass, or to extort some compromise it could not otherwise get if it had to fight for each separate provision on its merits?
So it’s a laudable idea to get rid of that sort of political sleight of hand by forcing Congress to tackle major policy issues discretely. But Sen. Paul’s “One Subject At A Time Act” goes about in a predictably simplistic, poorly-thought-out way. Just what you might expect from a guy who still pines for high-school-debate-team-dream-girl Ayn Rand.
Specifically, take a look at one of the bill’s enforcement mechanisms contained in Section 3(e):
(e) Commencement of an Action– Any person aggrieved by the enforcement of, or attempt or threat of enforcement of, an Act passed without having complied with section 2 or this section, or any Member of Congress aggrieved by the failure of the House of Congress of which that individual is a member to comply with any requirement of those sections, shall, regardless of the amount in controversy, have a cause of action under sections 2201 and 2202 of title 28, United States Code, against the United States to seek appropriate relief, including an injunction against the enforcement of any law, the passage of which did not conform to section 2 or this section.
Note what this provision doesn’t say. It doesn’t say it’s limited to non-conforming acts passed subsequent to the adoption of the “One Subject At A Time Act.” Maybe that’s the intent of the drafters – that one can only sue to enjoin enforcement of a non-conforming act passed after the effective date of the one-subject law – but that’s not what it says.
Normally, a bill that intends only to affect actions subsequent to its enactment will expressly say so. In this case, if the bill stated that any act of Congress passed after the effective date of this bill has to comply with the one-subject rule, then the enforcement provision could, logically, only apply to subsequent bills. But there is no such language in Sen. Paul’s bill; so even if it was intended to apply only to subsequent legislation, it’s so inartfully drafted that it’s hard to avoid the reading it this way: The bill would allow a citizen or a member of Congress to sue to enjoin any statute currently on the books that does not comply with the single-subject rule, regardless of when that statute became law.
Of course, in a lawsuit challenging a multiple-subject statute enacted prior to the one-subject rule, I suspect the court would try to parse the language carefully to avoid that result. A judge could, I suppose, read into the language of Section 3(e) – i.e., “an Act passed without having complied with Section 2 of this section” – an implied temporal component: Only bills passed subsequent to the one-subject bill could have been passed in a way that complies, or fails to comply, with the one-subject bill, so only such a bill can be challenged under Section 3(e). But on its face, the bill simply does not say that.
And so, a judge could just as easily read the “One Subject At A Time Act” to mean what it says. There’s no real ambiguity here: Section 3(e) seems to give people the right to sue to enjoin the enforcement of any act of Congress that doesn’t meet the requirements of Section 2. And in the absence of ambiguity or uncertainty, a court ordinarily is not supposed to look beyond the plain language of a statute to ask what the drafters really meant.
So … imagine the resulting chaos. Thousands of lawsuits challenging virtually every statute now on the books, most of which would be vulnerable under Sen. Paul’s proposed bill. It’s mind-boggling.
It’s also, of course, an easy problem to fix. Just revise the language of S.B. 3359 to clarify that it only applies to subsequently enacted federal laws.
But that assumes you don’t want chaos. When it comes to Sen. Paul and his fellow Ayn Rand acolytes in Congress, I wouldn’t count on that.