Can Congress Persons Fall Back From Washington?

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

One of our favorite laws of life — by which we mean poker — is that the cards talk. A man can’t lay over two pair and announce he has a full house and expect to take the pot away from the fellow showing a straight. That’s because the cards talk. Which is also how we feel about the Constitution. The parchment proclaims, and we all have to hearken to what it says.

Which brings us to the question of whether, during the corona crisis, Congress should — or could — meet remotely from the chambers of the House and Senate. Both Speaker Pelosi in the House and Majority Leader McConnell in the Senate are, in rare accord, against it. Naturally, the left is rushing out the idea that it’s ridiculous for Congress to have to come to Washington.

“It makes no sense,” reckons the Times, “for hundreds of lawmakers and aides to be zipping across the country as travel restrictions are tightened and Americans are ordered not to leave their homes. At what point does it become unacceptably dangerous, from a public-health and a public-duty perspective, for Congress to assemble in person during a pandemic?”

Remember, though, that when America declared independence, one of the injuries and usurpations we complained about in respect of George III was his habit of calling together legislative bodies “at places unusual, uncomfortable, and distant from the depository of their public Records.” A revolutionary virtue, it seems, was felt in sitting together in a regular place and time.

Which carried over to the Constitutional era. It is true that the parchment itself ordains that “each house may determine the rules of its proceedings.” The rules Congress sets for itself would seem, on their face, to be final. The Constitution, though, sets at least some of the rules, and they seem to tug us toward the concern voiced in the Declaration.

The Constitution itself establishes that a majority of each house shall constitute a quorum. But a smaller number “may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.” Congress is constitutionally empowered to use force to compel attendance.

A few words later, we get to this remarkably pregnant paragraph. “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” That is, the House can’t decamp to anywhere without an okay from the Senate — and vice versa.

That mightn’t be such a big deal, provided the House and Senate are controlled by the same party. What happens, though, when the Senate, say, is controlled by Mitch McConnell’s Republicans and the House by Mrs. Pelosi’s Democrats? The Senate might want to insist the House return to the Columbia District, particularly if some Democrats couldn’t make it.

The Constitution did grant to Congress the power to accept from the states a cession of such a district of land as might become the seat of the federal government and also the power of exclusive legislation there. Congress eventually accepted the District of Columbia, but not before Yellow Fever forced the government briefly to decamp Philadelphia for Trenton.

It’s not entirely clear to us, we don’t mind confessing, how the Founders would have wanted the jumble of Article 1 clauses to be read in the current crisis. It is clear, though, that the constitutional framers were not comfortable with the itinerant nature of the Continental Congress. Among the founders it bothered was a Massachusetts constitutional signer, Rufus King.

Mutability of place had dishonored the federal Govt.,” King had complained at Philadelphia. The requirement of a quorum, the power to compel the presence of legislators, the privilege from arrest while traveling to and from Congress, all suggest the Constitution dislikes congressmen getting — or lurking — out of town. That’s what the Constitution seems to say, which reminds us of what a poker player pronounces when he lays over a winning hand: Read it and weep.

________

Drawing by Elliott Banfield, courtesy of the artist.


The New York Sun

© 2024 The New York Sun Company, LLC. All rights reserved.

Use of this site constitutes acceptance of our Terms of Use and Privacy Policy. The material on this site is protected by copyright law and may not be reproduced, distributed, transmitted, cached or otherwise used.

The New York Sun

Sign in or  create a free account

By continuing you agree to our Privacy Policy and Terms of Use