Is the New ‘Super Congress’ Unconstitutional?

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A number of constitutionalists have warned that the new "Super Congress" – technically a joint committee of Congress – may be unconstitutional. The new entity will be created out of the Obama-Boehner debt limit deal. "It smells," Representative Ron Paul (R-Texas) told Fox News August 1. "I just don’t understand why Congress is so willing to give up its responsibilities to 12 people…. It’s a reflection that they don’t have answers."

Former New Jersey Superior Court Judge Andrew Napolitano told Fox News August 1 that he thinks the law may be unconstitutional:

"Members of the Senate and members of the House have the opportunity under the Constitution to debate items that are sent to them and to modify items that are sent to them. To force them to vote just yes or know with no debate, not to follow the rules of the House, which permits amendments, not to follow the rules of the Senate, which permits a filibuster, is such a substantial removal of the authority the Constitution gave them that this legislation is treading in waters that might not be constitutional."

One might agree with Napolitano that these points make the Super Congress unwise without agreeing that these particular points may make the Super Congress unconstitutional as well. After all, the U.S. Constitution provides that "Each House [of Congress] may determine the Rules of its Proceedings" (Art. I, Sec. 5) and choose its own officers (Art. I, Sec. 2 and 3). These powers of Congress in the U.S. Constitution are plenary; there are no limitations on them. And Congress has long chosen to fast-track (allow no amendments) most treaties and trade agreements that have been negotiated over many months, in order to avoid sending negotiators abroad again to renegotiate the agreements.

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