Rangel v. Boehner
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.
One of our favorite facts about the Constitution is that it prohibits Congress from passing any bills of attainder. These are laws condemning an individual to death — or inflicting other punishments. They had been used by some of the states and back in England and Europe. The Founders of America, however, just didn’t trust the legislature to mete out punishment to an individual and, instead, reserved such power to the courts.
Save for one situation. The Founders specifically empowered each house of Congress to determine the “Rules of its Proceedings” and to punish its members for what the Founders called “disorderly behaviour.” It didn’t get into details. But it did reserve the power to each house, so neither one, nor the other branches, could sit in judgment of the other. And there the power has sat more or less undisturbed for more than two centuries.
Now comes New York’s own Charles Rangel to hold the House to the standards of due process that would be required to mete out punishment to an ordinary citizen. He has just gone into United States District Court in the Columbia district and filed a case known as Rangel v. Boehner. He sues not only the Speaker but the House clerk and various members and staff of the Committee on Standards of Official Conduct. The Speaker and Clerk are sued as a matter of form, but various others are sued for what he insists is willfully violating his due process rights.
It happens that these columns defended Mr. Rangel at the time he was attacked by the New York Times. We don’t share much in the way of policy preferences with Mr. Rangel (save for the fact that he and the editor of the Sun are among the few who favor a restoration of the wartime draft*). But we’ve always felt that the rent control violations should have been addressed by repealing rent control and the tax violations by going to a national flat tax and the contretemps over the Rangel Center at City College by sending to Mr. Rangel not a subpoena but a thank you note.
Mr. Rangel’s lawsuit, in any event, is a constitutional cornucopia. In the past the courts have tended to decline to get involved in the internal affairs of the Congress, on the grounds that the wording of the Constitution leaves those affairs “non-justiciable.” This is not only because of the rules clause but also because of the clause that prohibits members of Congress from being questioned in any other place but Congress for speeches and debates made in either house.
What Mr. Rangel is trying to do is to pierce these clauses to get at the question of due process. He alleges, among other things, that there were ex parte communications with the committee members who would be his judges and racist comments by staff. He includes a blistering memo sent to Zoe Lofgren, who chaired the House Ethics Committee in the 111th Congress, from its staff director, R. Blake Chisam. We’re not drawing any conclusion about the veracity of all the charges in either Mr. Chisam’s memo or in Mr. Rangel’s suit, save for the notion that if the facts are true, the issues strike us as serious.
We don’t mind saying, though, that it’s going to be something to see if the Rangel lawsuit does manage to pierce either the speech and debate clause or the rules and proceedings clause and bring the long arm of the law into the question of how the Congress is permitted to proceed against an individual — even if the individual is not some poor schlump being fleeing from a bill of attainder but one of the most powerful members of Congress, under attack in both the liberal and conservative press at a time when a tidal wave of reaction was building among the voters that eventually swept the Democrats from power in the House.
* Mr. Rangel has stressed his view that were a draft in effect the nation would be less likely to rush to war; the editor of the Sun doesn’t disagree on this head, but his motive is to empower the Army in wartime to get whom it wants most efficiently; the editor opposes a lottery system or other schemes that put fairness above the ability of the Army simply to review all possible draftees and tap those it reckons would be most useful for the war.